since we said you know this was a real honor to have you back thank you to this the appellant crossing probably has ten minutes and the attorneys for the problems crossing points have twenty five minutes well that you get the chairman of time we we need to do it by knocking down the accounts to ten minutes which my guess is you would not favor or we can give everybody twenty five minutes and and we're not going to visit just one by the clock any of anybody who had so much time at one side after twenty five minutes the other side would have twenty five minutes are you going to take less time excellent ok well that's that's i mean if you had asked as we on the minutes it has the merits preceding the standing which doesn't make a lot of sense where was handing the standing order to justice first and then we get to the person handling merits after that unless you stipulated that you don't want to do it this winkleman and i will be dividing this argument in the following manner i will be addressing the constitutional violations in this case as well as the issue of qualified immunity ms michelman will be addressing  the district court's application of the law to the record that we have your honor i think the district court erred in several significant ways first of all i don't think the district court ever addressed constitutional violations in this case properly both the claim we believe that the right to express a conduct includes the right to gather information and that that that's what was occurring in this case the bryan kelly it actually turned on his video camera to record a police officer who was actually in the performance of his duty in a public location where there was no expectation of privacy essentially what mr kelly wanted to do was document the book the behavior of the police officer whom he thought was being rude and loud and and and we believe that the first amendment would include that sort of gathering of information so that it can be documented to be shown later certainly show it is the first amendment and include a gathering of information of sting from an expression of ideas well there there are court cases your honour's i'm sure you are aware that says the fourth amendment includes the right to receive information and i'm thinking of the stanley versus georgia line of cases from the supreme court certainly the right to receive information should include the right to document that that information as it has been received but a reasonable what about a reasonable restriction on the way the information is documented well i believe there could be a reasonable restriction on the way it's documented in this particular case however  this was this was an incident that per occurred in broad daylight on a public street involving a public official in performance of his public duties so where that right ends i can't really say for sure but it certainly includes under any circumstance the right of a police officer the right to record a police officer performing his public duties on a public street where there is no expectation of privacy and that you making first and fourth amendment their right pardon you mixing the first and fourth amendment he said the right to get information extends to a public street with his ne and privacy i think that's and i understand that i miss mixing the two concepts however if there is no expectation of privacy that is a fourth amendment concept and i and i understand but it also shows that the restrictions on the first amendment should be less stringent under those circumstances the ninth circuit has recognized the constitutional right to videotape specifically  eastern district court has recognized constitutional right the videotape in the robinson versus federal case back at one thousand and five that was a very different situation there was no there was an allegation or a belief on the birth of one citizen that police were engaged in misconduct and as a result of the citizens action charges were brought to me that this is more of a casual encounter than he had in robinson how missing was not a casual encounter intentionally seeking out the document where the photographer believe was evidence of wrongdoing and in this particular case if if you look at bryan kelly step is ition in the record as we cited in our brief he believed that the police officer  likewise in great engaged in unprofessional conduct and that was why he turned on the video con camera with so he could document that so i believe that the absence of this cases is identical to the robinson case actually where when police a traffic stop do they have a right to order the passengers to put their hands on the dash or i think i believe that they do your honor do they have a right to order the passengers to get out of the vehicle as part of a routine invest traffic stop i believe that if those questions correctly how do we reconcile the police's right to do that with your clients a legit right to be sitting there videotaping them well i think there's actually two different circumstances in this case that bryan kelly was not asked to leave the car he was not asked to put his hands on the dashboard but he could have been he could have been going to get out of the car and  the ground he could have been yes he could have been however if that's not happening there's a right by any bystander whether he's in the car or not in the car so the first amendment right is the pending upon what instructions the officer gives your client no i don't believe it is your honor i believe there would be a first amendment right of a passenger in a car to record the traffic stop that right may be limited how can he do that if his hands are on the dashboard or  of the vehicle with his hands on the truck how he record that perhaps he could turn the camera on before those events happened and that would perhaps be a way to restrict the first amendment right however in this particular case you know he was not asked to do anything except turn off his video camera and turn it over to the police in this case there isn't that isn't that a more minor intrusion upon him than than having him be ordered out of the vehicle i think it's a more significant intrusion of his first amendment rights and then if you had been ordered out of the vehicle of the first amendment rights yes i think it would be more significant well how would he how do you exercise his first amendment rights if he's determine that there were no safety issues or other issues related to the police officers in this case the officers never mentioned any sort of safety concerns or or anything of that nature certainly if brian kelly had been outside the vehicle standing on the street there would the air the person recording the incident and robinson was you just in to the beat of my my concern which is our traffic stops qualitatively different than public street cases and isn't there a history of danger to officers and traffic stops that that one wouldn't find in the case the judge bartol decided or other cases involving public parks or public streets places like that i that particular time he believed that he was observing officer misconduct just like the the person doing the videotaping in the robinson case he thought it was him weren't that this document they were that this conduct be recorded so that to be aware of what was going on was outrageous activity i think he could have he could have indicated that outrageous activity was going on if he during the course of his arrest yes does it in a quiet all about why would i would agree with that in this case though he was not being argumentative he was just attempting to record exactly what happened i peered to be out of time i didn't get to get to my other two arguments but  against the the burly wrap on some cases that one out of allentown one out of involving hands on one involving philadelphia both of which are cities and under pennsylvania's law you've got a borough here that's  city the first class i don't know what alan thought is second class city i don't know what it is but why would a police chief what evidence and is there in the record that the police chief could be viewed as a policymaker well the police officers or the police chief said in his deposition he was responsible for the creation of these these policies we rely upon the training that was given to the police officer himself the the testimony liability now your honor that's not that's not my argument necessarily however i think you need to look at the overall facts of the situation you have an individual whose conduct involves videotaping the police officer in the performance of his  does not normally create a policy however in this particular case we did have statements to the media and you have statements afterwards saying that what the officer did was a policy that seemed like a a policy of trying to stave off liability well that's the sense i got from the record i see where you can see it yeah exactly well you know regardless of the reason for the policy i think when you have the police chief saying that this was what was done and this is appropriate and this is how we want things to be done i think that our this is how we want things to be done that he see that i don't know that he actually used those words very certainly said there was nothing wrong they were more opaque about it  know if they spoke to a lawyer about avoiding right liability that may well have been the intent but but the question is what in your clear claim to go on the news by that i mean this would become a cause celeb at that point had it not it have been received significant media coverage  that community what we would rather rely on for the we don't to be perfectly honest with the court we don't have a written policy beforehand directing the police to make these sorts of erast  terms of policy we have we have merely the the police chief saying that this is the way it's supposed to be done at least that's inter what i interpret the police officer statements and i think that's how i fair interpretation of them and it's important to you to establish mono my ability why because it circumvents any risk of finding qualified immunity from iraq years or is there's some independent reason well the concern is really more of our concern it goes further than just officer rogers when you have the police chief saying that it's ok to arrest protesters who are very videotaping police i think that we need an injunction or sort of grabbing the head here pardon when you get into the protesters scenario one i'm not sure that the record would support that and that and i'm not she actually said that so the two problems one that's not with the police you said in two that's not what the client was doing that is correct your honor i was asking the question as to why i thought mel liability was important and in this case we do our firm does do a lot of protester cases and video recordings of the police are frequently an issue when you have the police chief saying that it's ok to arrest somebody for videotaping a police officer in the performance of the studio i think i what the a c l u centrist primary interest in this appeal is that this court give guidance to the district courts in terms of how to exercise the sequencing discretion post and the concern of the a c l u are concerned as that is that after pierce and district courts too often will go straight to the clearly established or not clearly established prong of the qualified immunity test say they can absolutely they can and we certainly understand that the mandatory sequencing rule of saucy it's now is now that hard and fast rule is no longer but the concern of the a c l u is if district courts too district courts but the discretion should be unfettered and this court can give guidance and i'd say particularly in first amendment cases and particularly in a case like this where you're talking about videotaping police officers in the performance of their duties and the complex first amendment issues as your your dialogue with appellants council showed particularly in those cases it's important that district courts struggle with was there a constitutional violation otherwise well always will never have the development of constitutional law which is certainly you know justice alito n p r s and recognized that constitutional stagnation is a concern and that it's appropriate and often beneficial for quotes to reach that first issue first and in this case where there's important and recurring first amendment issue especially given technology today with cell phones and how easy it is to videotape it's important that the court of appeals give guidance and say what we what we would ask is that departing from the typical order should be the exception abroad actually i put it another way judge mckay i'd say no i say that i see that not not to narrow it but to give district court some guidance prior to hard and fast rule this court gave it was the land of discretion and district courts quite could approach this as they wanted and this court certainly was willing to give guidance and did give guidance to the district court and say  in here are the types of cases where it probably makes sense to go to the clearly established on first where there is highly unusual facts where it's not of occurring fact pattern where there's a circuit split pierces  resources let me understand what you would like this court to do let's assume for the moment let's assume for the moment that this court were to conclude point one point two however that we don't think it was a clearly established maybe it now is but it wasn't up until the kelly rogers confrontation  the first part of the opinion and the would it be if there were would be an exercise by this court of its first amendment right to talk about the law i think this is just the point if this court the district does what the district court did and go of mediately to the clearly established we'll never know we'll never know or it will be difficult to know whether in fact there is a first amendment right to videotape and the law will never be clearly established and that's that's the conundrum and that's why even after pearson where certainly courts have discretion we understand that in first amendment cases where there is a recurring fact prob pattern that's going to come before the courts over and over again it's particularly important for the courts to address the first question of the constitutional violation before they get to the clearly established point rather time the mentioned person that was one of the concerns that caused them to cut back on this last year absolutely but pearson also recognizes the countervailing concern of constitutional stagnation if the courts always again and again but it's not always going to her again and again and in this scenario that's presented here is that going to be resulted in a whole lot of scenarios in which the first amendment issue will be definitely right there when the issue is not one of them clearly established and qualified immunity and what not but the efforts of some testing group to videotape police activity and the police ordering them to leave oh i don't know the riot of scenes of asking for a permit and having it denied and don't you get first amendment issues not cluttered up with whether it's just really established  i think what i'm asking whether whether this is and that this first amendment issue isn't one that's going to be going to be arising and resolved by this for the other courts  well then it would always be ticked off then right then then every then there would never be an opportunity there would never be a case in which the contours of the right would be mean even if it's a time this is doesn't matter to the hol but it's never dicked when the district court does it because the district court always has the opportunity to do is to address both questions right that's correct thank you that's a better answer well i don't know if that helps you with us though we're not sure right now you are both i mean i think i think i do but i think the difficulty you face speaking only for myself is that the pearson much like the supreme court has done in the sentencing area  this trust district judges let them do their jobs and you know unfortunately i think for your position one when the district court ops exercise its discretion to go to step two it sort of leaves you in the lurch but there will i hope be several cases where the district courts in their discretion will choose to address both questions and then it won't be dicked for us to to address the questions what wouldn't be and just stepping back of a step away from even there is for this court to say even post pearson in first first amendment cases because of the heightened protection that the courts have always given to the first amendment and we've discussed that in our brief in the courts milieu where that departing from the typical sequencing should be the exception it would be dick to for this court to say that and that would then prompt the district courts to do judge hardiman just what you suggest which is to go through the sequencing step one you know first asking whether there's a violation of a constitutional right and then asking whether it was individual judge called that side as he or she sees it but this court prior to us saw ca that put this kind of mandatory sequencing into place guided the district courts in how to exercise that discretion of which prong to go to first and really were asking just because pearson says that it's now a matter of discretion it was a matter of discretion prior to saucy day and this court gave district court some guidance to promote to make sure that these questions were addressed in the district courts were suggesting that there is nothing in pierce and at all that would prevent this court now from saying ok post pearson here the considerations apply to is this a recurring fact pattern you may agree or disagree but that's a factor to consider is highly unusual facts such that a ruling would never really promote the development of constitutional law is there a circuit split there pearson doesn't doesn't prohibit this court from doing what it doesn't many areas including qualified immunity and that is giving the district court some guidance as to how to exercise discretion that the supreme court has given that you're going to be the same if we were to decide that there was no first amendment right i mean you kind of assuming that our were a into the what interest in considering constitutional violations and constitutional rights however it turns out is more important than the outcome of a any one particular case i think that the problem is it's easy often to go to the clearly established process because the right may be uncertain the right may be unclear the right may not be well to find it it may be heart as in this case with the first amendment right  but if you always go they are then there's never going to be a first amendment right or even understanding for the for the officer and for the plaintiff whether there is a first amendment right to videotape if you're always just and in this case for instance and other cases that have present the same scenario of a district judge proceeding in a way that you think is not the optimal way  don't you get where you want to go by persuading this panel there was a first amendment right here and getting the court to say that whatever the court goes on to say about whether it's clearly established i could imagine for example the court of appeal saying it's it's not going to be are we we argue in our brief and i didn't have a lot of time here so i was trying to focus on this the order the sequencing that that issue but certainly if the outcome of this case were to find that there was in fact a first amendment there is a first amendment right to videotape police officers in the performance of their duties that would give guidance to district courts about the contours of that constitutional right which would be a very good outcome just just on that issue same thing every so there's no guns that have as much guns when there is no constitutional right to videotape we can rely upon mckay and picking up on some of the questions that the panel was addressing to appellants counsel to mr boyle this case if this court were to hold that  mr kelly had a first amendment right to videotape what the officer was doing in this case it would not mean that in every state no matter what whether the person's hands were on the dashboard whether the person was outside of the car and whether where nothing was going on that there was a blanket first amendment right to videotape this this can be more narrowly defined in this case because actually he wasn't asked to put his hands anywhere he wasn't out of the car he did have the opportunity to videotape but even more importantly i think the first amendment purposes something prompted him to start his cellphone rolling something prompted him to start the videotaping and that was some yelling some alter cation some unprofessional in his view conduct on the part of the officer and so certainly this court with respect to the  first amendment issue could hold that while traffic stops may be different from protest protester cases may be different from the robinson from judge bartels case with the with the  that where there is some reason that the plaintiff suspects that there could be a problem with the police activity i mean think of rodney king not to be inflammatory but we don't want to curtail citizens from recording police activity if there is and this would be the limiting principle if there is some reason to think that something might go right this is a good thing for society it's a good thing for the pla it's a good thing for the police so on that would be on the on the substantive first amendment issue where the lines could be narrow narrowed thank you very much thank you so much for the time very much appreciate it court my name is david mcmahon i represent the appellee defendant officer david rogers in the borough of carlisle police department runners this is a case which was decided on qualified immunity which in my view this is a case which is guidance is sought he seeks legal guidance as he's expected to under the policy of carlisle and frankly as pennsylvania law requires in the wiretap section as it pertains to the police officers and the recording of individuals through be if there's a videotape camera ruling ten feet away how could that not be because if this is your area the distinction is off the officers video cameras almost picking up a picture in order for the officer to activate the sounds he's required under pennsylvania statute which can reflect fairly recently with the advent of in car cruisers in order to have sounds he must first indicate and warn the person that they are being videoed it's the same analysis or the same requirement the officers trained that he is not permitted under pennsylvania law to record sound unless he first informs the person they're being recorded officers are also trained that they cannot use sound in the holding cell unless there's been some notice to the person either through a sign through of visual warning and so is the officers trying to exercise his this is good faith discretion he knows that i'm required to do this officer rogers testifies this i'm required if i'm going to  eve the citizen was held to the same standard to which he is held under state law correct and he was wrong well in the a da was wrong right i don't i do not think that the a d l was wrong and agnew couldn't be clearer but i think if you don't if you don't have a reasonable expectation not to be surreptitiously recorded during an interrogation interrogation room how does an officer have a reasonable expectation not to be surreptitiously recorded when on a public street during a traffic stop because in the context of a traffic stop driving stop is more private than an interrogation  room your honor i believe that both with hanlon and the other cases that are cited by plaintiffs it's a different scenario in that the officer now as i said before is required under the statute to videotape statute that officers are expected to follow to give fair warning to an individual before they record sound but because i just said the state law holds the officers to a higher standard than the citizen it holds the citizens are not required to give that disclaimer or that disclosure the way that officers are required to do under state law but for the qualified immunity analysis your honor the officer has some reasonable expectation that the standards to which he is expected to follow should apply equally to the citizen what's most important least police are held to higher standards than in citizens all the time i mean that's that's why why would a reasonable officer expect the citizenry to be held to the same standard as they are when in a whole variety of ways the law enforcement officers are held to a higher standard which is exactly why the officer believed that it was prudent and i would in fact something that officer should perhaps the more often this call for legal guidance from  certainly would that was good that he called the a da but the a da got it dead wrong the a da give him awful legal advice all he the a da looked at the first part of the statute and didn't look at the definition of oral communication right well which is exactly the plain reading of the statute would appear that there was a violation the officer consults with the ag wet weather with the benefit of time and analysis the a d a s was wrong he had another thirty seconds to look up the definition of oral communication the statute uses the phrase or communication that freezes a defined term under a different section i think right next to it it's an extra he forgot to take the a da forgot to take the extra twenty or thirty seconds to look at the definition of oral communication which requires an expectation of privacy of reasonable expectation of privacy right which may very well be the case but the issue as the officer is reasonable for him the rely  on call a d h who clearly has the benefit of more legal training were right so that that's where i wanted you to go the crux of your argument is assume that the legal advice was faulty it was still reasonable for the officer to rely upon that's correct and i think and how do you get around the cases where an officer swears on an affidavit of probable cause and doesn't go to a lawyer or goes to a judge and the judge issues the war the mallee versus br situation how do you get around that line a case why i think those a lot of cases require in order for the officer not to be immunized from liability one of two things had to have occurred either there was false information if the officer knowingly gives false information to in this case a line up of six photos indicated in his affidavit that the suspect the victim picked out the suspect of the six photos but failed to mention that they kept the name of the police department where the photos were taken only one came from an outside the part in the officer told the victim we found the guy that did it he was arrested in x municipality and there's only one photograph that would be an example of reckless disregard for the truth we don't have th rain let's assume a different scenario let's assume that this was a lawsuit in which the defendant or at least one of the defendants was the assistant district attorney who gave this sage a prosecutors are entitled to even greater amenity than police officers and so your immunity i believe there's absolute process thrown unity in some scenarios and therefore there's actually greater protection if if the prosecutor had been named as a defendant than the police officer just like the magistrate who issues of a bad warrant is entitled to judicial mutiny correct and it's and it's frankly have but but the police officer is the is the guy left holding the bag when the judge screws up and issues the bad warrant when the a da screws up and gives the bad legal advice the poor police officer who's neither warrior nor expert in a war he's the one holding the bag that's seems to be what the supreme court tells us and that's the unfortunate part i served as a pennsylvania state trooper before i went to law school and while i received legal training i know much more about the law now than i did then and i can make wiser decisions but we expect police officers to make decisions on fairly sophisticated legal issues that we've been debating this morning we've briefs for months and months and judge again would we expect the police officer on the street to get it absolutely right and if they ever don't the fourth amendment is critically or i mean that's  any seizure basically absent a warrant isn't reasonable absent certain exigent circumstances which don't seem to exist here and here you've got a seizure he knew he didn't have a warrant to seize the camera why wouldn't that warrant he's not arguing any kind of hidden circumstances he didn't think it was some kind of a bomb or anything in that camera when you took it he just took a disciple is kind of videotaping he knew he didn't have a warrant why isn't that enough to get past qualified immunity he knew that was a reason office permitted for a temporary short lived detention which is what that period of time say two three four minutes from that sign he confiscates the camera call till he called the a t f he also testified i believe i have a wiretap issue i'm not certain i'm not a lawyer i'm not an expert in this area of law and so i'm going to call and get guidance if the a day had hoped had told him absolutely not there's no violation here he returns the camera no charges are filed we have just the opposite happens the it's like when you grab a gun and you hold it and then you call and you do a check and it turns out to be a legal weapon and you give it back to the guy or various terry stop you might take him out of the car and cuff him briefly and then there's no problem you put him back i think ortiz said that's not a seizure right i would say you don't want them to have to leave a gun on the street so you allow them to take the gun you're allowed to tarry stop the temporary detention for temporary very limited pat down to make sure that there are no weapons on the person but again there's nothing here to on i phone think it's any different than temporary period of time while the car stops while he's writing the citation to the driver gathering information checking for warrants and when the other type of things image that's less than the uniqueness of a vehicular stop does that mean that anything in the problem here is that kelly was taken into custody and the camera was seized completely i mean there was nothing proof preventing this officer from getting killie's name and going back to the station house and investigating more deeply whether the wiretap act was violated and then swearing out a care criminal complaint kelly could have easily been prosecuted in due course for that crime if he had committed a crime the kelly kelly himself this person was not seized until after  officer gotten approval from the on call assistant district attorney he was not seized wrested taken the cussing till after well but my point is you know that there's sort of an argument you made earlier of heat of battle a da had to look this up there's nothing preventing these the a da from saying you know i read the statute it looks like you have cause here but i need to do a little more digging get the information we'll talk about it later i mean that's that's the point here this kid didn't need to you know even if even if his  his behavior were not that of an ideal citizen and on the facts of this case it enough to spend the night in jail in fact your officer didn't want him to the judge sort of threw a curve ball by locking the kid up right right and i suppose your hon if the factual scenario was the a t f said jeez i'm really not sure i don't take them in a custody let me do more research let me consult with other people and we'd have a different scenario but the advice the officers given is that there is a violation charges ought to be filed and a also much like the officer also recommended r o r and so while while i would agree that it was an unfortunate consequence again we're faulting the officer when the what but isn't the law though is it doesn't the supreme court tell us that that the officer on the street the one with the toughest job the least amount of legal training and probably the least financial remuneration is the one who's on the hook when a d a gives faulty legal advice or when a judge grants a bad war unfortunately yes but that's why the doctrine of coffin unity is in existence to protect officers from reasonable for argument's sake if they can't i think they hide behind the mistake of the magistrate that issued the bad warrant or in this case the a da because bad legal advice there is no can you cite a case where they can well hide behind that bad advice or that would be the line of cases we spoke about before malik the officers and you nice absent extreme circumstances like false information over this is false information as folks on this is summary judgment and it may well be it seems to me that a jury could conclude officer intentionally did not give the a da all of the information that the ag it would have made needed to make an accurate to give an accurate answer about that scenario he did not tell him apparently lisa's disputed whether or not he mentioned that he himself was was videotaping which may turn out to be an important fact i don't know but i will not help us for had or a reason like station of privacy in the interaction that he was having with telling me seems like that's not something that on this record can be decided as well as whether or not and his motivation in calling it in the plane of argues that he called the a da for nothing advice before approv basically ratification of what he would he had already done and on this record you could support that argument how on summary judgment can we find qualified immunity i think you take even the facts that aren't the sphere that it was a pretty light most favorable advice which might be regarded as bad advice and then you said that they exist and district attorney is close with more immunity than the officer which certainly a valid point supposedly of eliminate assistant district attorney from the scenario we were just talking about the decision my office at rogers to arrest mr kell putting in balance not merely the text of the statute but the act of the first amendment you think by any chance officer rogers could be protected on that  or a police officer yourself for being a lawyer doesn't surpass your sense of what i reasonable police officer would do to make an arrest under those circumstances all on his  own i don't know your honor i think that it's when we go through that the second and really kind of the third was a part of cloth and unity that is was it clearly established or would an officer have a reasonable belief that probable cause existed i still think there would be afforded qualified immunity to the officer now certainly it's a very different scenario than what we have here we have the the the district assistant district attorney saying that because i was i understand the  assistant district attorney to get the protective covering of a well i had a conversation with the prosecutor he said sure go ahead but that was not a really seriously that the officer did this merely as a rubber stamp i don't there's any evidence whatsoever of that and i don't think that that is really an explicit argument made by plaintiffs drinking from way saying approval or not advice which i think he's saying kelly i think there has to be some evidence of that there was there was a malicious intent and there were some circumstances in already had officers going over to the d a told the a t f certain things but not everything that the a t f needed to know to make a decision under the report that says even looking into all this after the fact and looking at one of the possible defenses to this that the officer didn't have a reasonable expectation of privacy the d a the d m self still felt as though there was probable cause for the charge purpose of qualified immunity is a scenario such as deaths that we expect from men this amounts of responsibility placed on police officers what we're asking in this case is for a police officer to be a constitutional scholar and to not only divine constitutional analysis on the scene at the time but also say that the on call assistance the second turn you said there's a violation was wrong and even the district attorney who had weeks to research and analyze this he also was wrong and in addition that was asking especially the district court judge kane didn't weigh in on the issue as well and it's i mean it's it's exactly what qualified immunity is intend to do protect officers still stock if the a da gave him bad advice under the law he may be stuck for issue number one and that is was there a constitutional violation but i think that issues too and really kind of that was i third issue and through case law is where the case and where the qualifying unity protection comes into play and that's exactly i believe why judge dean will in that second third issue because it's it's simpler you don't get in these decisions of the pennsylvania supreme court that were extant for decades there clearly established law so the issue of them saying the fourth amendment it's different in the first the first you've got our courts saying the a right you've got a district court here nights or a case there that's quite a different scenario than the wiretap issue for the purposes of the fourth them you've got to pennsylvania supreme court cases directly on point so which is so i guess then the issue one of the issues that is being asked to be weighed in on is essentially taking pearson which says give discretion to the district courts and taken that the suppression away unless the year after pearson is the side i think that i don't recall her opinion that she cited handlin and agnew in her opinion i don't think she addressed that threshold issue of whether there was a constitutional violation rather she in the not going through the mandatory sequencing which is what pearson allows addressed three what i'm referring to was on the call cars well case and other cases this circuits decided there's this close related issue of whether the officer made a reasonable the stake as to what the law requires is that the extraordinary circumstances scholar and that qualified immunity is one of the devices that's important to protect an officer and may be conscientious if mistaken on the of his kelly was doing you would welcome sure and wondered what we would welcome pronouncement from this court i think police officers always welcome some absolute black and white rules on how they're supposed to do their job the difficulty is often times and it's kind of what we lawyers do we can take the same case for cases and argue that it says different things and we leave officers to try to divine which is the stronger better argument i think that police officers would always welcome some absolute clear guidance on certain so they know what the rules are too often the case the rules aren't aren't always clear to police officers and i guess in specific response to your question whether or not officer rogers would like clarification on whether in the first instance there was a constitutional violation i don't know i can tell you that  it is often difficult on the street to make a decision on difficult issues that we lawyers wrestle with and so i almost think by asking this court where the district court the rule on issue number one would be helpful scenario had arisen in eastern district of pennsylvania western district the eastern district chief judge of the district court of said there is a first amendment right to  autograph videotape officers in the performance of their duty with that mean that in the eastern district it was clearly established right now i think it would be closer i'm not sure i'd agree because i think the facts of that case again the distinctions which make this case somewhat unique is the sound which is what the walls the officers are or balam to follow in the course of their duties the issue but i don't think that would necessarily make it clearly established if we're in the eastern district instead of the middle but i do consider pr me thank you thank you i understand the mister moore reserved a few minutes for reb may please the court just with respect to the qualified immunity there are several points that that i would like to make at this point in time first of all in order for a qualified immunity to it exists the officers conduct past the objectively reasonable and this particular case we would submit that the evidence shows this was not a check to be reasonable the ops are arrested under a statute that he was familiar with and that he claimed to be familiar with he never took the time to read the definitional set section of the the that the officer had with him i think the officers charged with knowing what the elements of the offense are and what the what kind of communication is covered when he's talking about an arrest under a wiretap act also we have supreme court cases that are decades this a there has to be a reasonable expectation of privacy there's simply no way that officer roger spitta thought he had a reasonable expectation of privacy this happened this happened on broad daylight on a public street while he was in performance of his public duties so there's no way that a reasonable person could have concluded that the statute applied secondly with respect to the the call to the assistant district attorney driver the vehicle both deny that they both indicate that the car was that the recording was open secondly the officer didn't see it the first time around he saw it a little bit in the middle of things that's undisputed well i don't think it was turned on at the beginning i don't think it was turned on until halfway through the the transom does any of that matter if the a da give give bad advice isn't that game set match from your perspective well i think it is to be perfectly honest because it was completely unreasonable advice however i think that a district attorney is quantitatively different from a neutral magistrate to begin with and therefore reliance on the district attorney should be very