breath we don't have a he said she said mr delora to administer deposition testimony that having alcohol on your breath is not the same as as driving while intoxicated or driving under the influence that that's true but the question here first of all the other question about whether or not aggressive lies or was done that would only be evidence that would be a post hoc justification of the arrest you can only take a breathalyzer under california law after an individual has already been that would tend to support mr del orthos testimony that although he had been drinking and that officer stark might have to check that out the hole on his breath that he was that he was not belligerent in any in any of these to what it was suggested he was a danger when he got in the car i let that isn't particularly clear in the record the only discussion about lighting the record is mr delora does testimony where he says that he could see across the street you could see what the officer was doing talking with three years of the world because of the lighting he could initially identify who the three youths were and tell he moved around so there was street lighting available it created some shadows and also one of the one where i am what i'm after is that we have repeated almost formulaic testimony from possibly have observed even if we bit past but even if we were to take that aspect out of it we know that mr delora first of all when mr stark approached mr delora we do know that they were fairly close to each other close enough that when mr delora was speaking over the telephone to the dispatcher we can hear in this tape recordings deputy stark talking in the background that they have to be at a fairly how question that when he had been drinking by his own testimony it had one bourbon and water and i think three glasses of wine over it's going to half hour period that's been questionable and he'd been drinking that's correct so the question is not that the question is the degree of intoxication and the degree of visible intoxication that and i agree with that and then we want to sessoms whether or not an officer has probable cause to make a determination of whether that degree of intoxication means six section six forty seven as requirements which probable cause to arrest him irrespective of whether or not he starts order or direction to him to walk home as opposed to drive home which was clearly stated irrespective of whether they had a misunderstanding verbiage the point being is that is that on the basis of his observed conduct which includes being told to go home whether he swears to drive or otherwise being told to go home by my count and just the transcription of the other tapes at certainly non cooperative typical behavior of a self important former supervisor member it is also the typical behavior of a sort of self important or supervisors member who has been drinking and whose judgment is impaired at one thirty in the morning and we have to take and taking in the whole i mean this was this deputy stark arises the scene he's there's twenty to thirty people and that is that is in the record out milling about which mr delora was one he's already had to deal with one demanding to speak with with the elected sheriff is heard by his first name yeah he says he says i'll catch up with dennis later at one point who follows him back who associated with mr foley will will stand up and say all of this is also perfectly consistent if we retell the story just slightly the following with the following details we put everybody in the same place but now what we have is an overbearing police officer who out of his league with too many people milling about have been drinking because they're at this festival that's been canceled and and it's late at night and you've got a responsible citizen mr brown is very unhappy with the way the officers is harassing some young boys he goes one that ought to be resolved by a jury precisely because that probable cause determination once you establish that the store expects our decisions to be made by judges not juries and that is and  that he was and that he was a danger to himself and others when you add into the fact that here is somebody who has been drinking who has been behaving in a way that it is possible to characterize as an overbearing and who's gotten into a vehicle that's what gives mr that's gives devotee star s very difficult choice at that point that you know he can either let him go and which case you know he risks that you know that mr delgado you know drives home and hopefully he drives there  home safely and doesn't crash in anything maybe he doesn't even go home but he's the he's letting somebody who is who has admitted to drinking has breath has has them alcohol in his breath and has been behaving in a way that is possible to characterize as an overbearing  where that gets us from a constitutional standpoint because the field sobriety tests are just simply retest the things that can be stark is already testified in the record says for which there's actually very little actual dispute in the evidence deposition whether once he got to the jail when he was that the jail did you think that you had red eyes and mr dulles testimony was i don't believe so and that and that in terms of you know what was observed  between them and along well so if it's the only thing that happened in this case and then officer stark deserving a man that he thought was drunk get into a truck and be about to drive away officer stark arrests him in order to prevent him from doing damage and so on i don't think we have a lawsuit so right well i think the first of all that i mean to be clear the defense standpoint is that the events terms of how much they're going to trust officer starks testimony about whether he had all this experience of being drunk because if other start came out of the blue star men and we had no prior contact whatsoever none of this exchange about what you're calling problem with with allowing a case to go forward from family judgment on that premise that there is that there was some confrontation some reason to disagree it would allow an awful lot of cases to go go ahead because there's a lot of arrests that occur under circumstances in which  who is behaving in an overbearing manner to an officer who is trying to disperse the crowd who fall even after this confrontation takes place if you accept an inversion of the narrative that i just gave i'm not sure he's overbearing he sees something  he doesn't address the officer one bit one way or the other because dispatch and says you know i want i know the sheriff is a friend of mine and i think i think you should know we've got a problem and he doesn't he doesn't even talk to offer or start with the overbearing partisans when officer paraphrasing but he says he says you know i'm on the phone with dispassion or something along the lines of i'll be right with you and then in response to have you been drinking you know how many drinks and i'm on the phone and then and then after that and then that follows up him three times that he needs to go home and he's sitting there beside the patrol car telling him that he shouldn't arrest mr brown and that coupled with the fact that there had been that the whole call the reason he was there was there was lots of people drinking in the street mr goto admitted that he was drinking he had and he added the smell of alcohol on his breath and he was willing to let him go out because we're going to let him go but then when he sees him get in the car he asked to make the decision in a decision to protect the safety of the community my time is up and if the court has any additional questions a little i'd like to have a couple minutes for rebuttal particular about any of the first amendment questions or mon el liability on behalf of the   statement in the response to the summary judgment motion where mr gold though told his deposition that he was not under the feet twenty three twenty on the expert of record got one a one lines eighteen to twenty three ok he was asked after he had finished the wine if he felt the effects of the drinks and he said he did not feel the effects of the facts well that whether those three are connected somehow biologically whether it was a it was caused by drink or whether it was caused by you know he's got clumsy feet on anything else it doesn't matter speech the kind of the nile that to me sounds more like a mission i don't believe so well if you can know when you have slurred speech that's something that's you know he's not listening about it there's no doubt about it unless you're still drunk if you can't remember you know at the district court i mean when you seriously if you didn't have slurred speech you say no at the district court hearing to dispel this conversation we were having we played the tape and we listened to the statements made by mr delgado and we heard the dispatchers response and we heard officer stark and that would dispel any question as to whether he the whole conversation the conversation that was with him after the order the part that was go order had a tape recorder on him the parts the girl no taped and the parts that dispatch tape we have mr do speech here you can listen to it it's clear they're fine i mean well the finding the finding in the district court was that officer stark on page eighteen of the court's decision they be starched deposition testimonies and is directly contradicted by the transcripts produced by the sheriff's office indicating either a lack of veracity or recollection on his part and so i don't know if that you go the transcript of that hearing was not included excuse me with the record i in this case where we played the tape of the court reporter did not take down the tape at the time we played it but the point is to dispel the question about slurred speech and behavior and mood and arrogance if you listen to the tape i think it'll become quite clear to you that mr dorner was not intoxicated did not have slurred speech and he was acting part of this while he's on hold trying to make his complaint what's wrong with calling up at twelve thirty and complaining about something you're watching happen he doesn't have read what he realized he doesn't he doesn't have the police or the officer he doesn't have slurred speech and you have to believe officer stark to get there and the district c if he had reasonable cause to believe that he was under the influence the answer that question would be no but he didn't have a reasonable cause to believe he was under the influence because he didn't do any of the procedures that are done is he was not drunk at all and the officer did nothing to determine if he was impaired for the purpose of driving a vehicle he could have given him a pass to test something the blowing on the side of the road to determine if he was a risk he could have had him do field he would have had to have had a highway patrol officer come in who would have then done all the tests and written up the arrest so that didn't happen because the officer never requested any of it and never did any of it and why didn't he do it well look at how this starts and i gave you some supplemental authorities and i guess the defendant has cited one line of cases and it looks like the ny circuit has cited haynesworth on several occasions about when you get into the first amendment claim and how close is the interference with the right to the exercise of the first amendment right and in this case there at the same time you can't get any closer than when it was a coincidence he's on the phone complaining to dispatch and lo and behold a couple minutes later he gets arrested with no other test no other facts just that just that he's the right to complain about a police officer is not only a first amendment right in california now it's absolutely privileged there's an absolute privilege to whatever you say when you call the s they had received the complaint although the tape recorder didn't have that in it for some reason the tapes we received from the sheriff's department started later in the conversation the beginning of mr go where those conversation used to suggest that the dispatcher stark realities and if it's going to get a complaint about somebody it may well be stark well i kind of thought when he said thanks to the dispatcher he was saying thank you that during deputy stark's deposition in the excerpts of the record when i was taking his deposition he said inconsistent statements repeatedly and they went to the heart of the case as to when he knew there was a complaint and others deposition in the export of records page two thirty one line twenty he denied knowing that there had been a call to the sheriff's office complaining about him that night and we dispatcher says i thought that you they were talking about obviously that in peru something had something critical had been said about him or some critics not you're trying to say stark lied when he said even though there was a complaint like ok he says two days later i filed was a complaint where are the two things contradictory well as you say i knew there was somebody calling complaining about me at one point and then later i says i didn't find out about it and two days later you ok well something was being said about him while he was making an arrest and while there was a solicitor nearby saying he didn't think with the contradiction because he said he must have lived there he must have enough a member deposition testimony and the order of events and as i read his deposition testimony when he when he first said i didn't know about a complaint being made he was saying that that he was referring to at the time that he first contacted  motives of the officer we only get there if there's no probable cause or that there's not even a basis to find qualified immunity from probable cause and i would just reiterate our view that even if this is a close case on the existence of probable cause it's one that falls within that hazy border that's the a talks about between you know when an officer is conduct grounds a thousand for that and when it does not and that point i just would also like to emphasize that the district court committed a number of what i thought were multiple errors and the clearest of which is the district court's qualified immunity analysis conflated the constitutional analysis with the i'm qualified immunity talking to the dispatcher i don't expect him to be there but i need to talk to him now and in any event i must the court has any additional questions for me i would be more than happy to submit at this point