it please the court and then express my appreciation to the court for the great committing these two to two cases so that i could make a quick run to the bathroom and quick my thoughts it is a pretty hard it's hard to beat you back that it is i was prepared but i really do appreciate the the opportunity to stretch out a little bit i'd start by pointing to the supplemental authority that the employees in this matter have brought forward i think that it helps to examine those three cases in light of needs and to compare them to this case in order to get really the heart of this case all three of those cases lund he go and and and off we all deal with a situation where there is some sort of unlawful act by the person that is later arrested or charged with trespassing or has their speech infringed upon by the government and i think that that distinction is what's really important this case because where this case really begins to go awry is is right at the very beginning at the very beginning mr mr fenn was engaged in nothing resembling any sort of criminal activity that would give rise to trespass again it certainly didn't give any rise to excluding him from a traditional forum where he was engaged in peaceful protests and this is is very different from for instance i believe it was london where you had a person driving victim says to the police i don't want to press charges i was sexually assaulted but it's a harrowing experience and the d n a comes and says you know we can't prosecute this person it's important  honor we haven't addressed the previous exclusion from the traditional form that the expired suspects orders as it were and the reason we haven't addressed those even though we think that they were wrong is because they were far enough back in time and they had expired were not trying to address those but they weren't any more they were based upon any facts that were any more legitimate or a painting a trespasser order then the current one and that's the factual and  started say that it was the grounds for it because he was convicted right that business without a license and that very building so he it's hard to say it's just completely preposterous the trespass orders were obtained before he was convicted of having a business the trespass orders were seen because they didn't like him being in there again it was the same situation as we have here he's in there badmouthing their business that they want to be doing this which is a government business and he's critical of that because they took away the senior center from the seniors and he thought that that was wrong so he's expressing his frustration they trespassed him in the st instance or expressing that frustration not in any sort of violent or dangerous man or even profane manner nothing along those lines they want to address fast and then of course there's the conviction for with the life and the business the life and and then after those expired he ends up back knowing full well  expires that there's now a new tenant in the senior center which is spaceport america which is a government agency he goes in again peacefully and handling him protesting and handing out cards and explaining to people why this is improper use of a government building why it was wrong to put the seniors out on the street and into the cold and he does so quietly and peacefully again in a public area he the kind confronted by the police officers they tell me as levy says no i have a right to be here that trespass order is no longer val knowing full well that he's correct that he has a right to be there that he has an interest passed out the action of then taking loading up and going to last purses to ask the director of this of a store or america to give them a trust us order so that they can kick this guy out that's criticizing space t america that is that's why i say it's more akin to manufacturing probable cause and that's exactly what they did they said well he's not really doing anything wrong we don't like what he's saying which is viewpoint discrimination at its court he didn't do anything other than express a viewpoint they didn't agree with and for that they went up changed for mr hicks and he he knowing full well that that this was on the basis of what mister ben was saying he agreed to give them a trust us order and processing him from a traditional place and then he goes back and when he goes back that's when they arrest him after they've gone out and put him in this position where they've discriminated against is the point they proceed on and then there's a discussion about the whether or  not and i want to address that whether or not the defense will know it or secondly was appropriate or whether it somehow doesn't have an effect of terminating the last prosecution i really do believe that this is a different situation offended had filed motions to dismiss pro se to have the case dismissed and those were denied after they were denied and as a result of my entry into the case and some communication that went on then the case was dismissed  a s office and the d a s office and is involved in what is traditionally a a officer prosecuted case that raises the specter that there's more to this and there's somebody who's actually looked at this and said wait hold on we should have been prosecuting this guy and then it terminated so it did terminate in his favor maybe not as a direct result of his motions but certainly is motions i believe contributed to that and i think the court can look to say mr fenn did what he needed to terminate the malicious prosecution that they would have continued on the trespass authorization was taken by the chief of police down to dan hicks and said he and it was offered to him and said hey we want to trespass this guy out of your property so i ness and of prosecution and it's again to the point i was just making about manufacturing probable cause and getting a what is a a fraudulent trespass notice and then using that as a means to arrest well that's a lot of what i'm asking is  somehow they may have some facial balut and that we did challenge those specific specifically addressing mr hicks the director of the spaceport and his actions and his participation in this and addressing the fact that his only real reason for excluding mr finn was for viewpoint discrimination and that there was no opportunity for mr fenn to it to address whether or not he should have been excluded from the building before he was we did we did address that in the briefing as as to mr that statute and there is if you saw this rounds that that these that that statute is designed to limit somebody from being in what is not sort of a common place some place where they shouldn't be where they can be disruptive and they can interfere with the government's business not if they i don't believe it applies to your traditional forum and especially when the person isn't acting in anything other than sort of a peaceful manner maybe if somebody is trespassing in the city park and they're causing still would be proper under a st amendment analysis and i think the previous indicated that there was some allegations of conduct by your client that  the people who work there there are those allegations that there is nothing that would conform to that type of an allegation no factual basis nothing is is recorded where he's been loud or profane or noxious in any sort of other than by his mere presence and of course just the bare allegation that he was it that he annoyed them is not enough to exclude him from his speech in a traditional form what if it's not it's not a traditional public forum the defendant in this case perhaps argued it is red brace that this is not a traditional public forum you didn't follow reply brief and we have a case about six months ago saunders has a oh gee that says for your honor i believe because we addressed those arguments that this was a traditional form and explain why it was in our opening brief we didn't feel it was necessary to rehash it the mere disagreement in response to what we had already put into and into our and i don't really think that there's a legitimate dispute as to the fact that you're this traditional form this is the open common area of a spaceport visitor center which during regular hours is open to anybody in the public to enter without any sort of they don't even have to pay for  admission it's just you walk into walk out there's nothing to it it's the same as a park where you could walk in and walk out to say that it's not a traditional form is simply erroneous now there is a distinction when it comes to drano trails which you'll see as one of those earlier that's not part of what we're talking about this is a different part of the building that is open to the public and it even though that part of the building is open to the public he still never violated that and went back there he didn't even attempt to if the girl permitted i'd like to retain my last minute  i represent dan hicks who is the c e o of spaceport america there are multiple of halley's in this case and we're splitting the allocated time equally today as we've just discussed the appellant mr fan has qualified immunity in written opinions many many times we've already had discussion of the standard this morning but but as everyone is aware we have it we have a two pronged qualified immunity test mr hicks as has asserted a qualified immunity defen constitutional violation it's also well established the distressed dick strict courts are afforded broad discretion to decide whether to address the constitutional question or the clearly established law question st and in this case the district court has addressed the the clearly established prong of the test st and ruled that mr hicks is intitled to qualified immunity this ruling as stated in the district court order  arises directly from the fact that mr fenton has not cited any case from any jurisdiction that indicates to any governmental official including specifically mr hicks  itself and nothing more violates anyone's st amendment rights and in the absence of any presidential or or otherwise case law presidential or persuasive case law the district court found  i think the answer to that question would come down to whether or not those that forum was determined as a matter of law to be a traditional public forum as we've argued in our brief this is not a traditional public forum so i couldn't say your honor whether or not an airport is or isn't but i can argue that this particular environment is an appropriate environment to issue a trespass order based on its character  again it presented with another opportunity an appellate briefing to offer examples that would put a governmental official on notice that signing a trespasser order conduct if we want to look at the constitutional issue the conduct at issue in this case is the mueller signing of a trespass order and we're here on a motion to dismiss and the relevant facts for the court are those that are alleged in the is still even in the context of delegation against another defend it he has led at the charges were unjustified him we did we are should we disregard a specific factual allegation conclusory allegation and the facts in the in the body of the complaint paragraphs three ten or eleven through three thousand and thirty five is where the last fact that they could apply to to mr hicks is those paragraphs eleven and thirty three are that mr fenn went to the center he made offensive comments to tenants he made other tenants feel afraid for their safety he soli business without a license which he was ultimately convicted for he later created concern about the possibility for damage and faffed of expensive items at the center and all of this is wrapped up in the idea counsel's correct the police went down to see mr hicks and they asked him to sign the order and what he signed the order based on was as a preventative measure based on prior incidents and that's complained paragraph thirty three and that is the crux of this it i employees well mr hicks is is is a he's a state employee suit in his individual capacity and that that under the current law entitles him to raise a qualified immunity defense your honor and i apologize i have to i authorities the three supplemental authorities that i filed on behalf of the truth or consequences defendants the past couple of months in each of those cases two of which came from this court conclude that spray the plaintiffs the persons complaining that their st amendment rights for violated by an arrest had in fact engaged in some sort of arguable criminal conduct for which the police had arguable probable cause at a minimum duress them that precisely the case we have before the court today contrary to what the plaintiff has presented and this is a case in chief this doesn't begin and end with mr hicks signing the trust cas notice in two thousand and seventeen with the plaintiff has ignored in both his argument and his opening brief is the two years of history that i think judge parker arc had touched upon earlier today the two years of historical facts the two years of complaints by other tenets of the johnson center in truth or consequences about the plaintiff's disruptive and threatening conduct not complaints about the message or content of his protest against the spaceport it these are going to storable facts that supported the arrest and charge of plaintiff in june of two thousand and seventeen and that's a st fundamental flaw in mr ken's case is that at no time has he established a lack of probable cause or indeed a lack of arguable probable cause that would be required for him to overcome the police defendant's entitlement to qualified immunity in this case the nd fundamental  has noted is that the plaintiff has not come before this court with any clearly established law either from this circuit from the united states supreme court or from the great weight of the three from other circuits showing that any of the complained of complaint such that he would be entitled to proceed with a malicious prosecution claim the problem for the plaintiff is no th circuit chase has ever made that equation no suit united states supreme court case has ever made that equation and certainly the behavior because otherwise if you don't have some kind of actual standard i could see a situation where the then airport manager poor example hired a public employee  issue a trespass order against the very type of person that i was describing a pamphleteer or a person expressing an unfavorable unpopular public opinion destructive person he also pleads and readily admits that he was convicted there at the johnson center of being on the property and conducting business without a license and in fact he attaches a number of documents supporting those those allegations to his own complaint documentation the test by play of two is on complaint and supplemental records are additional records that we were able to pull from the public record specifically the criminal case that plaintiff litigated after the charges were filed against him we pulled not only the criminal complaint but plaintiff's initial state court motions to dismiss where he alleged as he does here that there was no probable cause to file these charges against him and the plaintiff lost on that point in state court so this was actually litigated in state court and the honor to briefly touch on the last one i think that we broke down sufficiently what we're talking about and no point in our complaint that we say that mr finn agreed with the allegations of his conduct in fact it's quite the opposite that's that's the point is that the facts of their alleged in the complaint so that these people made these allegations but that was unfounded because his actual conduct as we've a legend in the complaint in the court should've taken is true is that he because there really isn't any evidence to the contrary is that he wasn't engaged in any sort of offensive or hostile or threatening conduct as was falsely alleged by the people to obtain the st two trespassers what's important is th the trust that sort of that we're here on today there is absolutely no factual support for the ag idea that he was in there again if he had been the st time threatening and acting in a hostile manner that's just not there they didn't like the fact that he was there and they tried to manufacture an excuse as to why they needed to exclude him and excluding somebody from a traditional form does have a body of case law that backs it up for instance the new lender case which we did cite to in in our brief and so we have brought that for the court i know my time