over the establishment to begin in the early part of two thousand and four proximately the establishment has been subjected to police activity through basically the council and then mare in our view based on the evidence attempting to run around a business and this harassment is which is how we characterize it involved people people being police officers coming to into the establishment at all times many times during a chef not really typically searching but just standing there and intimidating the patrons in in the tavern they do this as one officer testified who was a name defendant casey would walk in there and he would just sit there and hang out they would check on people's i d s check licenses in the parking lot bartender bone in his declaration testified even at times making sexual advances against some of the female customers within the bar the town moved for summary judgment along with the officers and that was granted by judge settle down into coma a couple years ago so i take it that one of your your claims is that the reason for these acts was your client's korean ancestry but i didn't see evidence that there were other comparable bars with other comparable levels of noise that were owned by non koreans that were treated differently the only evidence there is your honor now admittedly that part of the claim is thin but there is evidence at least through bartender bone who indicated that he had been at this establishment for a lengthy period of time including when it was run by her husband and he indicated his declaration that soon as she took over that's when the patrols if you will picked up so well that the difficulty is that i know order to show any sort of discriminatory enforcement of any sort there has to be someone similarly situated to compare it to you and that seems missing here we don't know what other bars there are in reston and exactly what people do there and how noisy they are any of those things and i don't disagree with that your honor and again i say that's probably the weakest of the claims but that what is your strongest claim in your view the strongest claim is the fourth amendment to be not subjected to unreasonable searches and seizures and harassment was seized and what was search of the search is just coming in and i guess i'm giving a general generous characterization in this court on a couple of occasions right to that because that's my biggest concern and liked a moment ago you used the words not necessarily searching and i seems to me that's a major distinction between the case before this court and they've been  case where indeed there they officers went behind the bar actually searched in drawers so clearly there was a search  they certainly did bring out on occasions they would search but what they really emphasize that least my opinion in reading the case is that which is similar to this case is the police during their shifts would come five or six times during the evenings sometimes they would go behind the bar sometimes they would search the drawers and they would walk throughout the bar in card people and that's you saying in this case of evidence they went behind the bar no i'm saying in that case that again adding to what the court relied upon in this  case we don't have the it was actually went behind the bar but they went into the bar they walked around and that's through the police officers testified they go in there and sit down and just hang out as one officer testified for periods of a half hour or so and there is obvious we have to acknowledge there's a statute that allows peace officers to go into license establishment which this is but they don't have the right to go in there to harass and just hang out and intimidate people it was an intervening event in all of this wasn't there no smoking in bars  related to this case i don't didn't that push the patrons outside there's definitely no smoking law in this to me that is grease the noise of a well i don't know that we have that is part of the evidence but certainly it's conceivable that the individual who lived across the street was the mare who became mayor wright was bothered by the noise look he's indicated he was bothered by the noise level of the retired chief of police that he was really wanted to run this place out of business and that was his motive for making these calls that law enforcement officer resisted those injuries correct that  was passed later right no it was a noise ordinance that existed at the time but he he felt that they didn't violate the noise ordinance he didn't feel he was getting enough attention as a private citizen so he ran for mayor he actually was on the council at that time and so he wasn't and he was not just a private citizen and then he ran for mayor and that's when the chief of police retired at that time but he felt his goal was and when he was chief of police that overlaps this complaint here what if if someone is violating the law and the motive of the person who stops them or deals with them doesn't prevent the  activity from being illegal iran can use established that if you're if you have a taillight that's how you can be stopped even if the police officer stopping you hates your guts and is really happy to be able to stop you and so i  think the other concern i have is i don't see a demonstration that there was no violation of the noise ordinance and other words regardless of the motive for enforcing the noise or in fact it was while a did then it can be enforced well there's there's no evidence that there was a violation there was no evidence there's evidence that the officer wrote a citation not even following the rule of law and  like the new ordinance in that in the city of rusty first of all there's got to be a complaint which will give them that but secondly the officer has to go and talk to either the bartender the manager whatever or whoever is on duty and them an opportunity to turn the noise down it's only a violation once they give them that opportunity and nothing changes and that didn't happen in this case in the one time that there's actually a citation for violating that ordinance and so that's what makes this a different situation and in that regard it's similar to the other nine circuit cases out there where there's a dispute as to what actually happened and i think it was santa ana case where the police officers testified that they had an emergency call there was evidence that there was never was an emergency call in the ninth circuit up help did you want to say my just a minute for about a yeah thank you you thank when i hear from mr required a mandated by state statute for the public welfare in enforcing the liquor laws in this state what do those active state statute requires police officers to go into a bar and sit there for half an hour well the specific all times so under the fourth amendment that statute it's ok for a police officer to go into a bar and see it for half an hour and with nothing it is i would submit that it is perfectly all right to do that is that your interpretation or is that what the the ordinance is well that is that's what a number of law enforcement officers do around the state not necessarily for purposes suggested by opposing counsel but for purposes that they are there to make sure that there isn't any illegal activity going on in a liquor establishment to make sure that people aren't being over served but oftentimes these officers are met by the crowds as being friendly they're not there in an intimidation status and i would suggest your honor that the the key issues in this case was the lack of evidence that the officers did anything that would come anywhere remotely close to being violet's of of any of the fourth or fourteenth amendment rights that they're complaining of the allegations and the risk is there any evidence about whether other bars in the town had similar acts acts occurring where police officers sometime in and hang out waiting to see if it was over serving or whatever else and it's an excellent point ron of what i'm asking your question is there evidence of other no other answer some way or another there was simply the declaration of the bartender said that he had worked other establishments not necessarily located in the town of ruston but in the general area and he said that they were treated differently but there was no specific evidence that satisfied the district court and that would be on pure conjecture speculation that somehow ruston was being treated differently because those were and identified mars and presumably another time period because he was only working at one part of time is that as greg different bars and no statistics of how often people the officers would would visit how many citations may have been issued for liquor violation there was nothing to compare to show there was any sort of disparity he had between he had been a bartender at other locations and he believed that the treatment was different correct he did believe it was different but the court said the district court said and i believe in a way ruling on our motion just strike the evidence as being speculative it simply coming up with that generalized statement is not  t thank you is it your position that that statute renders lawful some conduct by the police here that but for the statute would would be unlawful and would  there was no reasonable expectation of privacy in the open area of the bar and i don't know if the court had the opportunity to read the club level versus city of one and she case but in that case or even more specific evidence of police officers going into areas where there may have been more of an expectation of privacy more so than then in this particular case over the court again found that there's a there's just no expectation of privacy in a public eye stablish meant or a public bar and i was trying to think of a situation where that would be valid tip of the of the constitution and if i would think if someone a bar owner had a have a residence for example on top of of the establishment they ran and that was their personal residence the police doing bar checks somehow wandered up into a personal residence trying to use the auspices of doing police checks that could be and example of being violent of the fourth amendment but here there's just no evidence to suggest that whatsoever like correct about the nonsmoking ordinance or statute correct rather what you're i'm sorry am i correct about the impact of the no smoking in bars ordinance or statute i would i'm not sure which are interpretation that well wasn't there a point in time when it was perfectly lawful to smoke in a bar either in this town or in the state of washington if i believe then didn't the law change regarding that issue i don't know specifically but i imagine it has ok all right thank you so and then addressing the second claim by lucian equal protection  claim i think judge graber i addressed your issue that there wasn't any evidence that other liquor establishment were somehow treated just for fortunately or more favorably then the unicorn tavern and absent that evidence and the fact that the bartender was making simply a generalized statement that it was it was different the court found that there was any discriminatory motivation and i believe the evidence just doesn't hold muster to survive an equal protection claim and finally the due process claim under the fourteenth amendment there was very brief comment that ms parker was of korean ancestry is but there's absolutely no evidence in the record whatsoever that that had any impact or played any part in any of the allegations submitted that the police department did something improper there also is no evidence that she had an  inability to pursue an occupation within the the wicker industry and it's important i believe for the court to note that under those winds of cases if a tavern does go out of go out of business unless there's some evidence that you've lost your license to operate a liquor is absent in the state of washington based on improper police activity that would be violence of due process claim there's no evidence of that here as well so all in all i  believe that although the the bar owner may not have been pleased that police officers did walk through through the bar he does not rise in any way shape or form to the level of violating the constitution and as to the individual officers our position and i believe this record accepted that position is that qualified immunity would apply to the individuals and if it didn't there since there was no constitutional violation there as want to point out your honor the niggly also involved a situation in the state of california had the ability to regulate the bars and walk in there that statute that was a state statute there is almost identical to what exists in this case the judge s when he granted the motion a summary judgment basically stated because quote she has not shown she had a legitimate expectation of privacy the court grants defend its motion and clearly she has an expectation of privacy at least to a certain extent it may not be as great as no one's home but it does exist and had it not existed the cases from this circuit and been igneous in freeman would have been decided differently they can't use a statute just to go in there to do anything they want which basically is what they're doing under the under the guise of the statute it doesn't abrogate the constitutional rights to be free from this type of behavior