presenting the argument today or so i'm here to answer when i questions the panel may have i'd like to focus my argument on two points first i did by the six factors identified in the loz been decision the absence of probable cause should not be an essential element of a claim of first minute retaliation in cases like this one involving an allegedly retaliatory civil rico case by a local government second i'd like to irrespective that point address the point that there is no probable cause or the rico suit was brought here turning to the first point the standard first amendment retaliation case is governed by the standard set forth in the amount healthy case first there has to be protected activity involved and here there was petitioning activity to protect the second there has to be an adverse effect on that activity here the rico is part of the analysis that i'm going to be making under lowe's men at lowe's men identify six factors that are much more in the mountain health these way off base it's an employment base probable cause is needed to bridge the gap between the actor who has d of a tell you tory animists and the actor who is engaged in the conduct that has the adverse effect so in cases like cartman as long as men also observers the prosecutor has immunity and so would you have to prove he also has a presumption of well regulated activity so what  have to prove in such a case is that some other actor induced the prosecutor to bring the retaliatory case and what hartmann says and what losed and says is that if there was an absence  probable cause for the prosecutor to bring the prosecution that's highly probative of the notion that some other actor caused the prosecution to occur lo second factor is that where there's a municipal policy of retaliation that's an especially serious situation and here there isn't an additional problem florida law guarantees under article one section twenty three of the florida constitution a constitutional right but i'm saying a public record of service as a discussion  rainey said that malicious suits are not a predicate under rico and gulf stream in this court judge rosenbaum was on the panel this court held it doesn't constitute a predicate act for purposes of reka so if the city here again did this i think we would all agree it would probably be frivolous that's that's been the death knell has been set on that one but what if our precedent were different what if our president said you still it would be considered retaliate the question would be was the suit brought in order to retaliate or was it brought because they had some legitimate concern up of other that hard retaliation of dollars in damages they thought it was a bad action and that and a jury and so they were ride well of course none of that happened here but in fact the town of gold streams case was dismissed a motion to dismiss that happened you'd still say that would be a first memory failure i said what i'm saying is the issue would be did they bring the suit because they wanted to retaliate or did they bring to suit because they had legitimate concerns era's that it that they were following unrelated to the retaliation in lows is one of the reasons i come back to lisbon and lowe's been the gr this fact situation do you distinguish when something that would be retaliation that would be legitimate desire to bring wealth for example i wouldn't think it's a legitimate basis to bring a lawsuit where it was barred as a matter of law by prior precedent that would be one reason i wouldn't do it where i thought or where i knew that this is this kind of cases  case by the government order doesn't allow that and i also would recognise that where article one section twenty three of the florida constitution guarantees the right to make public record suits and public records demands that i don't think you should be able to go to federal court to get an order from a court either punishing or stopping the filing of state court suits on a fundamental right guaranteed by the state constitution if their word a fundamental right to petition that was implicated are being violated and if there wasn't a right under the florida constitution of could they bring the suit my answer is if they can bring the suit if that's why reasons unrelated to retaliation is why in lowe's when there was probable cause for the arrest i ask you a me but you still had a retaliation claim on a different sort of your line of thought let's say that that instead of that we have a situation where the person makes public records requests and the records they request are things like all records the city has that have the letter a in them at least one hundred times all records the city has that have the letter b in the middle east one hundred times and several like that that there's just it's clear that there's no sort of core first amendment desire that is involved in seeking these kinds of records and the sole reason for doing it is to try to sort of you know trap the city and get attorney's  that's the case here i'm just saying assume that is the case i seems like in that case under laws meant since one of the considerations we have to take into account is whether the you know this the speech that we're talking about the first of all whether it's in fact really considered speech but second of all whether it is considered you know like the core of the core first amendment value you know in a situation that we have in this sort of hypothetical where i don't think you could really argue that it is what we would normally think of his first amendment type of protected speech would this city then be able to you know would there be a cause of action under ninety three of the city acted the same way that it did here no i don't think so and why not and the reason is because as the case law of this circuit says those kinds of things can be handled clients in that case let's say the same thing that happened to your client happens in that case with the client in that case then be able to be successful under nine hundred eighty three suit retaliatory first amendment suit no i don't be applicable here that the standard is whether or not they would file a suit for legitimate reasons unrelated to retaliate and so i'm sorry if i could just bring   public records requests that as i've explained previously clearly are not legitimate ok the city in order to stop this files the one nine hundred eighty s files the the rico case but files it before the you know the precedent from this case is you can't do that your client tom can tom now sue the city successfully under nine hundred eighty three fo retaliating retaliation in violation of tom's first amendment rights for having filed these requests and for having filed lawsuits seeking money her attorneys fees for failing to comply with the requests well and whatever your answer is why my answer would be no because you have a remedy in each of these cases who has the remedy the city when i do a sometimes a defense at these times and sometimes they susie's you you always can argue that the request was a reasonable overbroad too vague whatever and they're laughing but how does that affect tom's ability to succeed on a nine hundred eighty three claim for violation retaliatory violation of his first amendment rights it because the only issue would be if they file that suit to retaliate for his petitioning activity or they'd do they file it for a legitimate release reason and related that would be the issue what the what this adoption of probable cause does is cut off i'm sorry and i think it's my it's probably me i apologize i'm not really understanding are you saying then that your that your client would have the time would have a viable cause of action under the scenario against the city for filing the one nine hundred eighty three claim at the no i'm saying that he would his remedy would be in the state court action he would have he would object to the request is overbroad bago ok for ok my would have a fifty seven want to wait and is that because those particular request were not really considered speech those requests were sort of considered conduct as opposed to speech they would they would be considered not proper or one thousand request the sole reason for filing the rico suit is to stop the filing of the of these nonsensical requests public records a requests right then there must be something different about the character of those requests than the character of your client's requests that makes the city's exact same action in both  cases violation of first amendment rights in one and not a violation of first amendment rights in the other and that's what i'm not understanding what is it about the character of those requests that makes it a violation of first amendment rights in one situation and not a violation in the other well i guess it's hard for me to speculate when it's so much contrary to what the record is but what i understand nine hundred eighty three four is when you've been deprived of a federal right and you have a right to petition and you have a right to file public records  cases so one of the reasons you limit one thousand nine hundred three is because you don't want to did intruding or creating federal causes of action that should be handled at the state court if a public records request is improper the state court can handle it you're limited to reasonable fees you have to submit your time billings  have to have a proper request there is no basis how does the state court actions start does does the city have to go in and say i don't want to respond as a city have to initiate it and i have all these one hundred requests and i think the overbroad they're brought maliciously i don't want to respond to is that what the city should do i'm trying to say well what is the city what is up with the city should be for example if i were defending the city now i'm asking it is our document this is like the hypothetical is for a or b or whatever it's clearly not a good legal demand but it is a demand so what does the city do they just write a letter court i'm not can't get all them to be frivolous i don't know whether they are not i'm just saying you were there then and the city denied their requests and then there were twenty nine lawsuits forget about whether the good lawsuits or bad lawsuit whatever yes ok there were twenty nine lawsuits over what period of time over the couple of years and then how many demands were they in that same period of time of which gave rise to turn on lawsuits well normally now sir i just want to this case how many demands were made well i think there were one hundred public records requests but right but there be have been more there being been more and there were lots of sub part of each of us and for example in one it was one public records request for one document one request one document it was a certificate of insurance it was a contract between one man in a south order management district request asked for that it said it was a public records request it said where the documents should be sent the it sent to the executive at whiteman who was who executed the contract with the government tell me what happened in the twenty nine mos and did your client recover attorney's fees in those lawsuits from the approximately fifteen hundred public records lawsuits submitted by lawsuits are i'm sorry requests requests submitted by me but i'm not talking about requests was sub part take it as one request even if it has parts for different documents tell me how many requests there were fifteen hundred even separate requests as your honor if you look at the record we have not not one hundred with twenty subparts for each one latter part of two thousand and thirteen the year before so august is when i believe they started really recording them and if you look at our motion for summary judgment in the appendix appendix two in every judgment in this carries yes your   exhibits and then there were at that time twenty nine washington been filed based on those requests and the out there were a variety of outcomes as minor standing some of them are still pending  notice of the record there's it's being litigated today whether or how much the title of the paper truly feel and one of the one of the claims at least one of the lawsuits it has not been there's been no war but it's in litigation so let me ask you something i'll tell you what i'm worried about you know i would like to find a distinguishing feature between now with jim it the legitimate exercise of first amendment rights and what looks on the surface like first amendment rights being exercised but when you look a little bit more closely you can tell that's actually not what's happening it's not an exercise of first amendment rights like a situation of the filing one hundred different requests all of the you know the first one says all communications from the city that that have the letter a in the more than one hundred times second one be etc like that  and those and here's here's what my concern is and i haven't been able to figure out how to draw that line because what if you have a situation where you have let's take the opposite hypothetical right got a news organization an investigative reporter or something legitimate investigative reporter who is investigating corruption of the of the city council and all of its officials and you know is seeking all of the records related to that and does it through a number of requests over an extended period of time because it takes a while to get the story or whatever  and the city does not like this right so this city files a rico suit like the city here did and says you know this is totally illegitimate they're just trying to get attorneys fees etc it's basically the same scenario is here except that their requests that are made are made so that the investigative reporter can determine whether there's evidence to support his theory that corruption actually occurred i mean it seems to me that if you then if the city is sole purpose was to stop that from going on right because it just didn't want to give those records since giv those records would possibly embarrass them or lead to criminal charges against them then that would certainly be to me that's would seem to fall within the lowes men within the lowes  less but on the other hand if you have the situation where you know the person is just seeking all of the stuff with a z or b s or whatever and there's no legitimate purpose it's not really the exercise of a first amendment right it looks like it on the surface but when you really look at it it's not how do you explain how that lot line is drawn first like to say that the town is that can see that public the public records act under florida law a first amendment issue when that the right to obtain public records from governmental entity is a state created right it's in the state constitution not the federal constitution yeah but i mean if you the right to petition the government i was in that but i was you know certainly thought of lawsuits about that would protected activity i think the test that the town asked the employer just look at probable cause and so in that scenario the court with and look well when the town filed this was their problem cause to believe a reasonable leave that they would be successful in the end based on what the status of the law was if there is that then there is no first amendment claim they can go forward if there is not that that scenario which if you're in your hypothetical assuming that wouldn't be probable cause at the time agency would be able to recover from the town for him by which the test we're asking the employer doesn't say someone like mr martin he can't recover you just have to show there was an absence of probable cause meaning that basically the lawsuit was frivolous and fall by the municipality the problem with the district court who said that this battle is just one battle in a longer war between these parties and the district court's grant of summary judgment as essential to brought that war to an end we're asking today that you affirmatively bring that this war to an end as a final decision thinking about the claims and the arguments are being made about the want one group we would ask you primarily to think about two things to concerns in terms of sort of framing the malicious prosecution the first is that as this court has noted and again it was in the town of those from case that the judge rosenbaum i know you were on the panel with malicious prosecution claims are heavily disfavor in fact the court went on to say that litigants may be sanctioned for for their conduct only in the most frivolous of claims only the most frivolous of claims this case the rico claim that was brought here is not even close to  that and so on one side we have the fact that these types of claims are heavily disfavored and i think the other factor to keep in mind again from this court in the me industry's decision noting that the standard for establishing probable cause is extremely low and easily satisfied so i think given the these claims are disfavored given really how straightforward it is to establish probable cause we don't believe there's any realistic basis for reversing th sometimes i speak quickly so forgive me if i do so given these parameters the question is do we revive this war and we hope and we think that the answer is no you don't and in fact we think that to some degree and the court has already answered that because you may recall in the rico case that we previously came up to this court you know the court ruled against my clients found that the rico claim rule thirty eight which is the rule that says you can get appellate fees if the appeal is frivolous and this court denied that claim i think having already in the rico case when you had that full the full briefing on that case ahead of you  said this is not frivolous we're not awarding attorneys fees this is really just a second bite at the apple they couldn't win it that way so now they're bringing it as a malicious prosecution type of claim that's that's heavily disfavored that will prevail only with looking at malicious prosecution claims have compared them or analogize them to motions under section fifty seven one of five returning cities and in those cases again the standard it's written somewhat differently but the courts have interpreted five comparing it to malicious prosecution it said it seems in congress in congress to impose a standard frivolousness for an award of attorney's fees pursuant to section fifty seven one five and a standard invoking a lesser degree of care to support an award of damages for malicious prosecution so basically i court is saying if you can't win a fifty seven one of five motion you can't win the equivalent to rule of emotion or rule thirty eight motion on a you're not going to win a malicious prosecution claim so we think again the court having already looked at this issue when the rico case was up on appeal it would be equally in congress to find it this malicious prosecution case should be revived and brought we think in large measure it's already been dealt with we haven't had much opportunity morning to talk about all the sort of facts that were available to support  the finding of probable cause below and i'm certainly glad to do that although i have limited time left so i think the problem in this case is whether the standard is probable cause if it's probable cause it's an easy case the big question is whether the fourth element here is probable cause are some proxy for probable cause is clearly a point that i'm just is that probable cause not in the malicious prosecution in the retaliation case clearly in malicious prosecution order came out to bring it to brief lows in that we read it we said it doesn't seem to be us that we did anyway but i really think it's an issue between the other parties it won't surprise you to know that i agree with the town on their analysis but i do think they're right on that  so with less than a minute left i will try to run through all of the factors relating to the roof of probable cause in this case but they are substantial the type of public requests were being made here factual question i was looking at the public record statute and one nineteen point zero seven four d says if the nature or volume of public records requested is such as to require extensive use of i t resources or extensive year client as the contractor i can't speak to the city and i won't attempt to do so the one group is in sort of an unusual situation they got one public request and facially the request wasn't a bad request they asked for a copy of the woman groups insurance policy that it had to do work for swift but the trick in this case and it's a trick they use all the time is they send it with a subject line than an email address me that made it appear to be spam and so my client either never saw or thought i'm not open in this because it's going to affect my computer system and didn't respond to it the first time that they actually learned that this insurance document was being requested from the produce that they were trying to withhold the insurance document they thought they were working you know walking themselves into a virus on their computer so it's not merely public records requests that are sort of outrageous all the letters a or all the letters b it was trying to send them in such a way that you could deceive the recipient and i will tell you this i also do a lot of public records request we represent a lot of legitimate media organizations we've represented joel chandler in the past when we request public records we figure out who do we need to ask let's make it very clear let's tell them we'll pay any fees associated and let's like them to the public records acts they know they have to do this and the reason we do that is we want to get the public records they have zero interest in the public records they want to get the attorney's fees and the notion that they ought to be rewarded by this court now and this summary judgment  think you would like to first address one of it was one request for public record it's clearly stated this is a request for public record it had on it where you were supposed to send the public record it was for one document to specify you know what the e mail monta you know i mean it said this is a public record request at the top and it said send this not that would be it it's in the record the request is interested it was sent to the executive who executed the contract for wotton with the south florida water management district the contract in it that the documents relating to the it's performance are subject to one nineteen and it gives this man as the person to get notices relating to the contract so one e mail one specify document clearly labeled now how you get a rico case out of that i'm not sure but then what happened three weeks went by because when he got it he thought it was spam well given the they they said well we have thirty nine hundred thirty nine hundred dollars and sixteen cents in attorney's fees of thirty billion thousand half a million fifty thousand thirty dying hundred dollars and they refused to pay it the case went forward and the court appellate court ultimately ruled that it was not an unreasonable delay to take five weeks to respond if they initially thought that it was spam you didn't go i'm so you didn't get right they did not pay attorney there was no we call it court rule for them a court ruled under the law in florida if there's a delay it has to be an unreasonable or unjustifiable delay if you produced a document and so there was no payment of attorneys for his and the demand was for thirty nine hundred dollars i practiced a long time it's not uncommon for people to  ask in an initial settlement demand for more than the lodestar or not in fact under the factors of this court you have fourteen factors under johnson and then the subsequent cases producer or whatever you're not limited to lodestar so somehow one demand for a specified document or which no fees were paid became a rico case now what we are entitled to have is a jury decide did they bring this rico case for this entity because that they  their review of the law was that they could get a rico claim in the teeth of what discords said or did they do it for other reasons so the hypotheticals that you keep asking about about hundreds of thousands of documents being requested that's not what washington is about in town of gulfstream there is no evidence that any extortionate payment was ever made in fact there was no settlement paid in any of those twenty nine or thirty six cases there is also no evidence that a single one of these cases was ever held to be frivolous meritless or improper in any way and what this court said in  prendergast what it said in gulfstream is that you have a remedy if if someone files an improper case you have the ethics in the dischord cites an opinion where  your of time charges in and whatever other basis you have for the fees you're asking for what is being done here and i have a question for you this opposing counsel says if i go look at document one thirty eight you a second point and then you wanted to know what it was accurate and i believe it's accurate ok but i will also make a second point which is under the florida public records law documents are to be kept as if they're on the table