running reserve five minutes with the court's permission may it please the court my clients are five blind men ages seventy sixty four sixty fifty eight and thirty one who cannot navigate without white canes a thirty five year old woman who cannot walk and uses a wheeled cart to support her body and her husband these are the people the defendants singled out and barred from entering a celebration of the americans with disabilities act that was free and open to the public and it was being held on the grounds of the michigan state capital a classic traditional public forum why isn't this a time place and manner restriction a permissible one yes your honor first of all there was no permit that was being enforced there was no general rule that applied to everyone showing up at the capitol that day for example there was not a rule that you could not leaflet with in the event or hold signs with the and within the event this was a decision made solely as to my clients based on the content of their speech that is not a permissible time place and manner restriction even if even if there had been some content neutral  rule that the michigan state police were considering applying it would still need to meet the requirements of the first amendment case law namely for even a content neutral exclusion that exclusion would need to be narrowly tailored to serve a significant government interest and leave open the ample alternative channels of communication here there was no significant government interests ever identified by anyone  destruction of the of that is that not the event of the interest it is not your honor and that's very important here the district court and the defendants labelled my clients protesters they they spoke the defendants spoke about need to prevent disruption that is the characterization being placed on my clients that is not accurate in the complaint what we planned is that they showed up that day because they are people with disabilities who had a deep interest in the subject matter they had some signs they had some leaflets they did not intend to create a disturbance and there was no information that anyone had to the contrary they we consider the videos part of your pleading you mayor there's the video to show there was yelling from the from your clients the video shows a partial snap shot of the day the videos go on for hours what the defendants have focused on is about fifteen minutes of the video that picks up after the police have already my clients from entering the event there is no video of everything leading up to that including that morning when my clients were gathered on the sidewalk simply standing there chatting and the police come up to them and say are you planning to enter the a they say yes we are and the police tell them you may not come in and they enter a dialogue they say why not what have we done and the police say this is a private event we don't want to disturbance my clients and answer them they say we have no intent of creating a disturbance we're just here to come to the event none of that was one of the sponsors or one of the originators one of the organizers of the event yes mr hart's was on the accommodations committee once the police take the position that you can't enter there are about fifteen minutes where my clients are very upset and they're saying things like let us in let us down and shame on you they're also interludes in that where they are trying to reason with the police officers and say you you you understand you can do this you understand the irony here this is an event about access all we want is to go in and talk with people to go to the booths to hear the speeches and we will not create a disturbance there also many hours after mr hert arrested where the video shows they're simply standing there and remember to i represent seven people not all of them were yelling not all of them were saying anything there's one man who simply stands there holding his sign he's blind he can't see what's happening and they don't let him in either this what each of them have an individual claim i thought it was just hearts they do all have individual claims under the first amendment only but i mean with regard to getting  said this is this is not right i'm allowed to enter an event that's free and open to the public and imagine for a moment the scenario that he's and he can't see the police officers he is completely blind they have formed a wall in front of him with their bodies they have erected metal barricades all he has is his white cane and his voice and they will not speak to him they do not speak to him to tell him where they are and so he is tapping what do they tell him what does he know they tell him you cannot disrupt the event that's what they say to him and when he persists and say i am going in they yank him across the barricade and they arrest him and they he was not resisting arrest they dragged him through the michigan state capitol was he carr sign he was not mr hart's had his white cane he was wearing an eighty eight twenty fifth and an anniversary celebration t shirt he was one of the organizers of the event he had a backpack and he had leaflets you think that that the what the police should answer is yes the police should have let them and this is something that has come up time and again in the case law and in real life and yes if at the time that they were in the event they were creating a disturbance if they were you know gathering around the lectern where the speakers were speaking drowning out the speakers blocking people's access at that point that that significant government interest is no longer conjectural it's no longer speculative it's a real thing that's happening again this is not you would miss porter how the distance from the event where the were your clients were positioned how far from the could they have disrupted the event from what does that mean to disrupt my client's posed no physical threat to anyone if we think using our voices and speaking loudly is sufficient to disrupt round out the other to the other purpose that was organized that day they would not have been able to do that from where they were left behind behind the austin blair statue nor were they allowed to interact with anyone inside the event there were booths and the event responded in the event restrooms they were kept on the outside of all of that and the case law in the circuit for many years has been clear that's not ok holding somebody making them stand behind a booth relegating them to the sidewalk putting them outside a permanent area that's not acceptable the first amendment right and this is something that the supreme court made clear over eighty years ago the united states supreme court if you have a right to speech somewhere the fact that you can exercise it somewhere else is not sufficient there have to be clear articulable reasons that that still are weighed against a strong first amendment right for expression how far away with a restrictive about one hundred fifty the event or they're not that far from the back row of the event again that's not good enough being held outside the event was significant for my clients they wanted to participate in the event they wanted to walk around and talk with people they wanted to go to the booths that were set up on on various topics they wanted to eat that tape and use the restroom and again if there were if there were a history of violence by my clients if they had engaged in some sort of conduct that made clear that there was going to be imminent danger to anyone or even your honour's example that they you know that they were telling him let us and we're going to drown out this whole thing that that's a fact pattern that we would need to walk through and consider but it's not the fact pattern of what happened that day it's not struggling with you know if someone if someone goes to the police and says we think somebody might be about to do something unlawful is that enough for there to be a conspiracy the answer is no it is not but we in our come what what what else is there besides that point yes your honor we did a pre filing investigation in this case and we learned that there was more here than just a simple tip to the police or i have a concern about what did you say in your complaint though about that we said in our complaint that after that initial call there was a series of discussions even a meeting between the state police and the private event organizers the morning of the event where they sat down and they reached an agreement and created a plan to keep the organizers out of the complaint it was much more than a tip i reserve my time thank you very much will divide your time heals it's going to happen five minutes apiece you're in the morning your honour's assistant attorney general john ford and scam here on behalf of the individual state defendants the district court did not air in its qualified immunity analysis there is sufficient daylight between what the first moment case law says about time place manner restrictions and what actually occurred here at the capitol and i think the panel's questions about disruption and distance and the rights of the folks who have the microphone are important to consider and so what about ms porter's opinion or suggestion that let's see if it happened and then take action well one fact fair game under rule twelve and i think judge quist down below said you don't have to wait for the actual disruption to her to put out a prophylactic measure like a human barrier or a mental barrier which is precisely what happened in this case and organized privately sponsored but open to the public what about the allegations in the complaint where they say that sergeant held said the eighty a celebration was a private that doesn't that take this out of the time place and manner restriction category  have a privative that you're saying you read to me that indicates you're excluding the plaintiffs from the of that that's not a time place and matter strikes and you're excluding them altogether well i think we can take well pleaded factual allegations but we can't take legal conclusions and face value exclusion as a legal conclusion your honor and i think what we have apparent from what developed in the criminal case in the video and also what's implicit and explicit in the allegations is that this group was about ten hundred fifty that's fine either way it's not consistent with other case law where in the vigils are told by police you need to leave bible believers was actually decided after this case but it provides some useful guidance because the qualified immunity problem in bible believers was the order to disperse and the threat of criminal action there's a they say that they would create any disturbance to the police that the people that manner restriction that the police laid out and dove tailing into the fourth amendment claims really there's no basis here to conclude that any of those officers didn't have a reasonable basis to believe there is probable cause  for resisting an obstructing and in fact the plaintiff was bound over on charges in the state cord and so all the malicious prosecution the false arrest claims really ought to go by the wayside that's based on what's on the video how he was yes absolutely your honor and also based on the testimony that came through in the preliminary examination and really the binding determinations as a matter of collateral estoppel by the state court that there was probable cause for these charges  can consider that it as a matter of judicial notice at the motion to dismiss the ages i think you can your honor and if you look at the complaint and actually close the preliminary exam transcript and it references video and so what was developed in the criminal case is actually within the four corners of the complaint here and it can all be done on a rule twelve basis as you know ms porter argues this is not a time place and manner restrictions that it's that it qualifies as a absolute within the designated event area as judge quist noted in the opinion a final point i would like for the court to consider is that the state law claims judge because didn't provide separate analysis on those but i think the import of the court determination and the opinion and the judgment that dismissed all the plaintiffs claims make it clear that those state law claims ought to also be rejected and as a matter of state on unity any individual claim against my clients morning it please the court justice star appearing on behalf of the appellee handicapper advocacy alliance inc your honour's as you know my client is a private entity that was one of the organizers and it's been brought into this case under a one nine hundred eighty three conspiracy claim only and it is our position that the appellant has abandoned the equal protection clause claim under the fourteenth amendment because it was not brief so it's just a hundred eighty three conspiracy claim and as you know the standard is is that a single plan has to be has to exist in order for my client to be brought into this and it is our position in that the conversations she expressed concern initially two days before that's what's pled and there she did not participate in the specific meeting between misc group betty and the state police so she was not involved in that but she did then appear on the morning of the event and didn't meet with officer held where she basically was made the point that she did not want the protesters to disrupt the event and that's what she said she didn't make any type of plan organize anything where the police would keep them out she just merely expressed her opinion and i think is to judge bush's point before which is that it would have a chilling effect and i think the district court said this if individuals were prevented from expressing their concerns to the police it's not like my client actually went and  information and merely furnishing information does not meet that standard there was a plan that was in place by the police to exclude what were labeled as the protesters i was going to i was i wasn't sure when you finish your thought i was going to ask you to address whether or not the pleading here given that we're in a twelve b six procedural situation whether the pleading here doesn't if we're read in the light most favorable to the plaintiff your honor i do not believe with regard to the conspiracy it does not and i think that's why in the briefing itself  the appellant paraphrases what's in the complaint but does not specifically say what is in the complaint and i think if you look and we brief this pretty thoroughly that the complaint itself talks about the actions that my client well the next weaver who was the former director of my client it talks about specifically what she said and as you look at each of these various allegations and i won't have time to go through all of them it does not amount or rise to the level of conspiring or coming up with a single plan it does not meet that threshold even even g all the benefit of the doubt yes that's the question yes yes and i think it it the benefit the doubt is one thing taking it to a whole other level where it's asserting facts that are just simply not planted in the complaint takes it to another level get your client did say that if this group this bust showed up he wasn't going to let them park she was not going to yeah according to this but she didn't tell the police not to do that she pleading so that she said she would not allow the protesters to park that's paragraph forty of the comply so i think there's a big distinction there between telling the police are asking the police to participate again the that's correct so anyway the general point is that there needs to be a meeting of the minds i think the district court opinion cites to the starts all case vs city of philadelphia holds that and i think that the case even though there's an allegation that sergeant helped told weaver that the michigan state police would not permit protesters to pass beyond the austin bear blair statue so there is an allegation that she knew that that was the parameter well she was told that right so not quite exactly what i mean it is a little i understand what you said earlier but but she was aware of the parameters she was made aware by the police that's correct  morning judge cook judge bush seiler my name is greg me and i represent the michigan association of centers for independent living in judge bush to go just at your point your point about that the sergeant had told that that this is what the plan was for the michigan state police is really the only hawk one could even think of bread crumb in this case on a twelve b six but it doesn't meet the conspiracy statute and it's not sufficient fact the fact that the police told them that's what was going to be done does not establish as a stargate or all the other cases that there must have been a plan but there's at least when there's a legend an agreement because they ask that they ask the policeman or not to be protesters they did they said does it say that in the complaint what it what it's what it says in the complaint is that my client to give an went to the police and sad based upon being part of the planning commission and based upon him telling the planners that there was going to be a protest went to the police and indicated that there was a belief that was going to be the case and then the allegations go to the fact that and i can read agreement told her said she expected there to be protesters out event that's not illegal or improper she's entitled to be able to do that the part that you reference are gravity forty six correct agreement agreed with sergeant held that the embassy will not permit that but it was the michigan state police that first came to them and said this is our plan of action and all my client does a say ok it sounds like an a greement doesn't it well you keep my client is a private actor has no agreement with a state police of what they will or will not do all my client does is acknowledge and that's what he's going to do that's why the twelve b six is not the works in this case and should be dismissed what does agreed it mean it means she was told and she said ok that's not a conspiracy planned with all due respect judges it's simply a human being saying this individual part of the planning told me there's going to be protesters which by the way when you look at the video a bullhorn is not a cane it's not a hearing device it's not a visual device and i'm not trying to be p acknowledgment of what the oh it's happening exactly ok could it be read as an agreement no because if it was an agreement it should have been sat it should have been said they agreed and sat down and had a plan of what was to be done my client has no power over the michigan state police to how they affection wait their duties all she did is make them aware the sergeant looked at the issue and of course we were here but again let's not lose sight of the fact that mr hart was part of the committee that created this event he communicated to these people that it was going to happen they communicated to the police of what he told them and the police came up with where this was going to go and simply came to my client and explained what was going to go on and she said ok or i agree this is fine but it's not her dictating to the police or them sitting down in a plane there's no allegation of that if there were we wouldn't be here in a twelve b six and then last i just want to in because everyone else spoken about this you get to look at the video because it's part on the rule twelve and when you look at the video and you see a bullhorn when we talk about disruption it's exactly a line in there and you notice she didn't hear that from sister council that one of them showed up with a bullhorn you don't use a bullhorn to communicate there's no allegations and again i'm not trying to be funny here there's no allegations here that people had speech impediments or speech problems of voice prompts they could not project voice when people come with a bullhorn it's the drowned out it's exactly what was communicated it was exactly the fear the police acted in appropriate matter and i submit when you look at that video you will see not somebody being dragged across a barrier you will see somebody going across the barrier indicating what they intend to do leslie i would just like to end with the same comment that brother council made they have abandoned the equal protection and i believe the only case before you as it relates to they're supportive of the problem but it's clear when you listen to counsel's argument that this case was dismissed on a topi sex there has been no factual development many of the facts you just heard from counsel are not correct they are totally inconsistent with the facts in our complaining name the facts that are i mean to help us with that because counsels directing us to the pleadings and the complaint and the the i just want to enter the event it is not on at all during the video there is no use of the bullhorn and certainly there are in anywhere in the record that her agreement to leave it in the car or leave it on the news   it's on the video your honor oh she says there's extensive discussion on the video where miss canter is trying to reason with the police and yes there is a discussion about that and one of the one of the police officer says i think what he says is i'm going to have to take that bull horn i don't think he does take it away from her but she never uses the bull horn she never insists on that she is conciliatory throughout and trying to reason with the police about the fact that they intend to make no disturbance that they're happy to comply with with with that with that complaint we do allege agreement and that idea is the ok to the to the officer and acknowledgement or an agreement it is an agreement your honor and what do we ok so that the that the way one must read it that is the way the court must read it on a neutral being on a twenty six and also that is not all we allege we allege that there that there was a meeting that morning do i standing here before your honor's no the entire content of the meeting counsel has told you that the plan was presented by the michigan state police we don't know that there's been no discovery from any of the participants in that meeting as to who said what where did the idea of the austin blair statue come from was that from the police was that from that we're going to users of the event that's something that we are entitled to discover and one might accuse my complaint of many things but it is not sparse it has detail about the events of that day and the reason why we we believe that we have sufficiently par you aware of any relevant case law at the motion to dismiss stage regarding these issues it seems like most of these cases if not all of them summary judgment cases that's correct your honor qualified immunity the court's say should be decided as early in the proceedings as possible but the motion to dismiss stage is too early there are significant factual disputes between the parties about what happened you heard  once one counsel say that my client mr hertz charged the barrier that is an absurd characterization of what happened mr hart's is blind he didn't charge anything he tapped tapped taps with his white cane to try to find out where the barrier is the police say to him you're not going to make it the third and and they literally pull him across the barrier what happened that day is he was not just going away quietly and that is what happens in most of the cases the police threaten whoever has shown up with their sign with their badge and said if you don't leave you're going to be arrested and most of them back off mr hearts was angry he did yell if you watch the videos you will see it was very upset by what was happening he's allowed to be that that is his right and in terms of saying i am not going to stay behind the barrier the police had no right to put that there they did not have a right as is what counsel said you have to think about the rights of the folks who have the microphone my clients first amendment rights are important too and the case law in this circuit has been clear for years that it is not up to the police to choose they don't get to say your voice is more important than yours just because you have a permit that means we're going to privilege your voice me know it is not we allege specifically in the complaint that the police made false reports and that they gave false testimony testimony which of course was critical to a probable cause decision tainting that for the matter has been well presented and the court will consider your argument carefully and issue an opinion in due course thank you