is not done if if the government doesn't meet the conspicuous harm and that's where this court in united states versus vishal and other courts have really said what really what we're getting at with the conspicuous posting is is there notice is the vishal they found that although there was no conspicuous posting once father vishal is told if you don't cop yourself from the door you will be arrested that gave him the type of notice that we would anticipate that you would assume that's against the law you can go to jail for that but if we look at the actual charging in this case he's not mr severe us was not charged with assault of conduct he was charged with resisting he actually wasn't he was charged with a and then it goes on to say to where didn't name says specific the specific officers involved and which was missing so i understood your argument to be that he had to be notified  resisting arrest was prohibited and that was the exact contact that he was needed to be advised he couldn't engage in but that's not what he was charged with use charged with impeding official duties which is a little different it is not i would be more precise  under the circumstances the notice requirement would be you have to comply with a pat down or you will be arrested and the reason it has to be so precise is because this rule the next circuit is creating other circuits have agreed with is an exception so it's either the government has to you want to do things one has to be regulations happy person a conspicuous place to if they don't do that there is a savings there's still an ability to arrest the person if they're told precisely what the consequences there's that language but the courts listing out a series of explanations of different cases in which what has occurred has been found sufficient to provide actual notice so are you suggesting said if the test were exact notice it sets at the potential argument that the person would have to be advised step by step no you can't kick an officer no you can't struggle you can attempt purpose of bringing him to secondary inspection was in order to me and they did tell him that they the supervisor told them we're taking you to secondary we need to do a pat down to see if you have any weapons for your safety and for the safety of the area they told him that in the testimonies that they told him that repeatedly as he continued and our safety what is not told at that point is either that you have if you do not consent to a pat down you could be arrested or if you continue to interfere you could be arrested but he was told that the officers were conducting official duties they explained what they were doing and why we need to conduct a pat down and it's for your safety and ours he had struggled up into that point he continued to struggle he then kicked an officer and he was told he was sold to the federal officer you could be arrested for that he's use profane language continue to struggle and attempted head but an officer and he had been told he could be arrested and he yet he continued in his conduct so why should we find he didn't have actual notice of what he was doing was prohibited and that he could be arrested for it because those are different your honor an d i think the test me would show that they're after the kicking he's told about the kicking it subsequent to that it's that the pat down is completed fairly shortly after that so the officers would have had to say oh and by the way we anticipate that you might threaten our families heard attempt had that one of us and you can't do that either well he wasn't charged with that conduct and he's charged with obstructing their official duties he was specifically charged with going to comply with a pack so no the charge when you look at the charging language that was charged but the statute the regulation does not prohibit refusing to submit to a pat down it prohibits interfering with official duties it doesn't mean that's why i was saying that he there has to be the specific do you have to consent to a pat down or you ation about him because the only way that the government essentially proved the kick in this case was from the testimony of a supervisor car and a photograph entered used by officer lopez who did not see the offending kick had the government turned this information over and had it in about half from reno in the pick narrative might have been quite different if there was information about him  know your honor i think it's a combination of how it progressed as the district court held in this case the assault of behavior was part and parcel to the resistance and it was continuous and all directed at resisting the pat down search if you look at a law that's ok but where's the the notice comes in sort of two different parts st when officer corps responded to the area he repeatedly tried to calm him down and explained in detail we need to conduct a pat down search for your safety to search for contraband and to search for weapons  after that morning as to what their official duties were he responded by kicking the officer ok at that point the same supervisor in the same tone explained that you just committed assault on an officer you can go to jail for that it was all part of the he's continuing to resist he's telling him this as they're continuing to turn him around ok at that point he after receiving what let's say if and after that let's assume those two things were not ok for anything to happen after that so what happened after that as i understand it was seen continuing to say nasty things essentially no you are not i think that's the critical point is after that he continued to physically was illegal and he could go to jail for that and if you look at the testimony of the officer it wasn't some sort of idle threat i could have but you in the future and they were three officers in a small enclosed area off their car had his hand on the defendant's shoulder  notice that you could be arrested for doing a particular thing but no one seems to be i gather you're not disputing the i mean you haven't raised the question of whether the statute actually does require that notice as a condition of the conviction in and as you told the story the actual notice was only completed at the time that they told him that the assault he called in jail for it is so often the place it certainly was completed at that point i don't think there's any question whether having knowledge or having an officer tell you that he needs to conduct a pat down search and responding by kicking the officer whether that alone could satisfy the requirement of actual notice could it potentially i those my question remember shell is to set a test or does it just say in this particular case the notice requirement is sad it is notice is a now actual notice is enough but not the only way yes i think if you read that section about the exact conduct and visual it wasn't framed in the way that this isn't a test for every case it was just a description of what the facts were in that case which were very different from here i mean that was a sort of static incident where  change himself to the court house and in addition if you look at that case the defendant that case was was not charged with the nuisance and he wasn't charged with chaining himself the courthouse he was charged under a different section that prohibited with every quired him to abide by the directions of officers so even the warnings in that case don't train yourself to the courthouse or were not directly related to what he was charged with in that  case it was actual notice that what he was doing was illegal and that's the key here that a defendant who is told he has to submit to a pattern search and response by kicking an officer in the leg could not reasonably have believed that that behavior regulation can conclude a penalty correct and then says you have to post a regulation which seems to include the penalty well i think certainly under the old language it would seem  and so was allowing something that isn't exactly in the statute i e actually notice anything even absent a post right but at least it has to be actual knowledge of what had to be in would disagree with your own i think it's really the cases that have interpreted this actual notice none of them have required actual notice of the language in the specific regulation they all talk about actual notice of whether it's unlawful whether the actions are illegal or on lawful as i said in the show that specific charge was different from what he was even warned about he was charged with that he had to respond to the directions of officers and he was warned about chaining himself to the  the courthouse and other cases in strong the st circuit case today the question was whether the defendant and i case would have known that it was wrong to smear feces on the wall in the bathroom or even  doesn't set a test and so then how how do we you know would we be able to take constructive notice are you have you given up on that argument because you're just you're saying this is actual notice at the end of the story i'm not sure that we would give up on that argument i think certainly once he's warned you can go to jail for assault a federal officer any response by attempting to head officer than that is actual notice and we don't even need to get into it i think most of the cases he did i'm starting to read he did more than just threaten the head but in attempted in threaten officers family he responded with extreme profanity a few this is b s you know he had been advised he could be arrested in his response the way he responded verbal indicated he understood he was being warned he was breaking the law and there could be consequences he didn't care he knew in fairness he knew that he was breaking the law and i was the owner and i think the most important fact in that situation is that he and seventy what's interesting about that case is the quote from that opinion is the demonstrators were told quote those who do not leave voluntarily by then i will be arrested and taken to a federal detention center subsequent case law after the statute was changed that's different from this that then then the the case that you're referencing that we relied on in bishop does that change that analysis i don't think it does i think the important thing there your honor was just that when th why should we agree bissell in this recitation of what other circuits have done to go to the most stringent test available the reason i say that your honor is again this is a saving provision this is what happens if it's not posted and i think that you would need to ensure that th e notice is more closely tied to the conduct and the actual consequences of it because again this is only meant to save an otherwise arrestor conviction i wouldn't stand ok thank you very much thank you both for your argument the case of the united states