an allegation that at least one blow had been struck and in which there was the possibility of further violence it was a domestic relations call that the officers arrived at in their first objective primary objective was deescalate the situation calm everybody down investigate the allegation of domestic abuse and proceed from there their ability to deescalate the situation and investigate the allegation of abuse was frustrated by the plaintiff's behavior several things happened during the incident and we had vance three separate legal theories to the district court why  that the independent had probable cause to detain mrs olson the first one which i will address and that's the only ground addressed by the district court was that after miss olson was ord to along with everyone else to leave the house and go on your art she turned away and headed back toward the bedroom to get some clothing she testified that one of the officers not whitfield intercepted her on the way back to the bedroom and gave her permission to get a shirt however there's no evidence in the record that officer whitfield knew that she had been given permission to do that in fact when asked point blank by the plaintiff's lawyer about this he said he was unaware that she had been given that permission or that she asked to go back to get a shirt so one of the things that she has done as far as he knew was to disobey the order to leave the house if that that seems to be important in this case and understand what what your client says but and basically found it unreliable because it didn't address the specific facts of the incident me with the facts the deputy whip feel so see one officer she says she's not totally clothed understandably she might want to put something on so she goes back and you say he didn't know that she had been given permission but did he a rest or immediately when she came back out of the bedroom door no he did that the actual detention didn't take place till the back of that particular instance of disobedience could not have been the reason he arrested her then whether he heard the direction or not really forms part of the reasons why he decided to detain her in fact and officer with fields mind that the more important problem was that she kept hollering and screaming both at the deputies and at other people in the household throwing deposition before the police grabbed her she many missiles and was not yelling or causing a disturbance and stood she came out of her room like a civilized human being and ask why they were in the house i think there's any dispute that she used foul language but that you know i understand you have your version of the facts but there is i mean it we have to accept the facts that as miss als to yelling the f word at the deputies get the f out of my house without even asking why they were there in the first place she admitted to directing profanity in a loud voice to other people she used the b word against another basis for her erast are that the you know in part in part there's three theories the going back to the better theory which she didn't do promptly as far as what field knew secondly there's the yelling and not calming down which interfered with prevented in fact the the ability to offer said deescalate the situation and prevent the possibility of future are and then there's the disorderly conduct theory  where she was saying things to other people in the household like the b word that a reasonable sir could conclude under these circumstances where she's a participant in this with so called family  brawl that she was using fighting words which under florida's decides disorderly conduct statute can constitute a violation well i'm just trying to understand the top what really prompted the officer to arrest her so i can understand totally what you're saying the words or other words with the initials to then you can be so loud and disruptive in this volatile situation that officer can ask you have despised disorderly whatever the content of the speech but my understanding from what judge nicole was doing he was focused on fact that he that the office of the deputy addressed her perhaps in part because he thought she was the person who committed the battery on my the compliance and in fact she wasn't in the office or didn't do enough to ascertain think what is your response to judging calls discussion about the lack of probable cause to arrest her based on the bruising of one of the compliance you disagree with his analysis on that well deputy would feel was wrong about the fact that she was a mother he was mistaken about that but that was a lead to argue that he had arguable probable cause to believe he should arrest her i would have done so i don't think my co counsel who drafted the brief a really addressed that permission but i would have argued that there was arguable probable cause and that given the circumstances in which there was this loud angry argument going on everybody shouting and yelling whitfield and all the other officers were all mistaken that mrs olson was the  victim's mother and that was one of the things that prompted him to detain her so that he could call mr that the main issue was calming everybody do and i was trying to figure out if if he arrested her because he thought she committed the you're going we'll if you go back and you look at our motion for summary judgment what's your position on why arrested her as she did the battery or because she was so loud he couldn't control it it was officer whitfield initially in his report says i did it for both  reasons that she was being allowed she wouldn't be quiet despite the fact i asked her to be quiet we couldn't find we couldn't deescalate the situation because she was being loud it interfere with our ability to do that and secondarily he was under the mistaken impression that she was the mother of the domestic violence victim and because of all this the family brawl which is mentioned i think in this for it's his deposition elsewhere or no it's were able to determine she wasn't the mother in fact but the whole situation prevented any investigation at that time they couldn't investigate it because of the loud argument but don't we need more than mere words i mean she says she didn't disobey orders she says she didn't disobey orders but he says he asked her he asked her if she didn't may have she may not a perceive that as an order but as is as judge kinkel concluded that of it i understand you know the florida cases the fun fighting words to be words like falsely shouting fire in a crowded theater things that are going to cause  you know massive harm and you say what she said here fits into that i believe it doesn't matter under the circumstances it's anything that could incite others to act out or potentially become violent and given the volatile nature of this argument directing words like the b word against fellow person living in the house could very well have been perceived by reasonable officer as being morning good morning ma'am please the court my name is marie maddox on behalf of the happily and the problem in this case is there are shifting reasons for why she could even possibly have been arrested for anything if no one had ever said that this was heather olson so they had to abandon not because there was no follow up to ask who the mother was and her mother happened to be there betty fritz was actually physically present so they abandoned that argument and you would argue and your argument would be that just because somebody has motherhood hit her that not arguable probable cause to arrest when you've got more than one person i guess you could be a candidate for the mother you don't just randomly get picked one of the people yes ma'am ye but more importantly that was the only reason if you look at mr whitfield's testimony and i and what mr whitfield said and this is on pages two eighty five to eighty six of the record and he says when he's asked why was she arrested and he said for suspicion of domestic violence and not and disobeying a lawful order so when he was pushed on not on page two eighty six when the question was we asked again he goes let me back up and then he receives from his testimony and says what i was trying to do is detain her for domestic violence to interview that was his testimony so he even receded from the statement that she was interfering with anything but that issue is a disputed issue of material fact as to whether she was interfering with anything and if you look at what she has even acknowledged saying she says and this is the only thing that she has acknowledged in her deposition saying at any time for the entirety from the time that they got there until she was in the car and she says when i get out that bitch won't be and my house when i get out she's already in the car she's already been arrested for the one statement that she says this fighting word that they're arguing now she was already in the car already in handcuffs at the time that she made that statement so that statement could not have motivated them to her arrest her because she was already in the car when she s said get out of the house at all he says he doesn't remember that at all her ever saying that so how could that have ever motivated your thinking you're saying that a reasonable inference is that he arrested her based on the belief she had committed the batter  and apparently this deposition was surprised to learn that she wasn't the right person that she wasn't the mother i gather that she what not only was she not the mother but that they have abandoned that that entire argument has and her failure to execute that exit the house after being directed to do so but that is a fictitious hypothetical fact because that's not what mr whitfield testified to and it's also not what she has has done in this case is come up with these hypothetical facts that just don't exist to support some finding that there was an arguable probable cause when those are not the facts of this  when they're arguing that in your first argument today before the court and in their brief was it she was boisterous that's disputed and he did not even mr wickfield did not even describe how she was boisterous and her testimony is the only thing that she ever said was what i've just read to the court but second mr wickfield never said that she was asked to leave the residence and she didn't leave so how can they come before this court and argue that that is the fact that supports the arguable probable cause for her arrest when mr wickfield never testified to that so what they've done essentially is they have come up with these facts that potentially ok if there were facts to support them that could result in arguable probable cause but those are not the facts of this case so the question that this court had asked though first before we even started the briefing was whether this case was properly before the court and there are cases and i would rely on the johnson versus jones case the u s supreme court johnson versus jones where in that case what the u s supreme court said was if it's based solely on the facts on qualified immunity is improper and my argument would be and i would stand by our original argument that the appeal should have been dismissed because it's based solely on the disputed facts they're not arguing before this court the law the law is clearly established that you cannot arrest someone without probable cause that's a false arrest under the fourth amendment so they're not arguing the law here and are not even arguing a mix question of law and fact they're arguing simply the facts which is what bottle i just wanted to direct the court's attention to something in the record that was placed there by the plaintiffs or plaintiff and that is officer whitfield's offense report dated written shortly here the incident and he says this is that document thirty three dash six page two he says all the subjects were yelling advise all subjects involved to step outside so that we could resolve the issue i made contact with heather olsen advised her that she needed to step outside heather wilson continue to yell i observed a red mark on  also ins daughter is mistake and i asked her what happened and she stated her mother heather poster is mistake heather olson refused to calm down either olson refused to follow my commands and continue to upset the other subjects at the residence there also and walked outside and started yelling mr ms when he decided to a restaurant and you're talking about facts again and well he's just made the argument if if the only thing issue on appeal is facts then we don't have jurisdiction of the well those facts are not disputed it's not disputed that she was yelled at that this also was yelling outside miss fritz she only addresses what happens in the kitchen but the incident continued to go outside there's no dispute of fact that officer whitfield asked her to calm down that she continued to yell outside and that that yelling interfered with the ability of the officers to deescalate the situation prevent further violence or the possibility of further violence and to continue the investigation those are undisputed and i submit that a reasonable officer could conclude based on these facts that there was probable cause and the cause of this what our position is officer would feel is entirely qualified immunity thank you