run of the question is why are we here the facts this case are fairly simple a father gets a call at one thirty in the middle of the night telling his son has been charged with criminal activity needs to come collect the son gets out of bed he drives twenty minutes to the site where his son is located and speaks first to his son who indicates that we're being charged being in a drinking party i wasn't drinking based on this information mr haas and then proceeds to talk first to officer vocal to ask  questions and begin to advocate for his son's innocence he asked that a breathalyzer test be given to his son and asked what proof do they have that his son has been drinking and why are the police involved what is the probable cause he told the officer vocal that officer fisher is the the investigating officer and also fisher is the one who has the information michalos of then turns his attention to officer fisher what is clear from the record both from the away back to the criminal trial in this case throughout the depositions is that officer fisher made from a decision to break up what he's doing in gage mr klaas in a conversation during that conversation mr haas again advocates for his son's innocence requesting a breathalyzer be given to his son and want to know what the probable cause for the police are to be there at a certain point officer fisher decides that he's had enough and instructs mr lawson i'm not going to answer anymore your questions i'm not going to deal with you signed the paperwork for your son and that's how it's going to be mr haas of then follows the instruction signs the paperwork for the release of his son upon completing that paperwork he's told that he is free to go he says i want to stay here until my son's friend nick would have a previous outburst earlier in the congress when he's having a conversation the officer fisher and is now locked up cuffed in the back of police car i want to make sure he's ok mr last told he's not your concern he's not your child his parents here leave or you will be arrested the requests a flashlight be shined on the driveway they say no mr hoffa leaves output before the court that the record it a minimum on a summary judgment standard does not show a long period of time nor does the police report indicate anything other than a direct exchange he says that he says in the hearing of officer vocal i'm not to leave until i make is that the law the case doctor has not been abided by based on the discovery that happened after the first time we were here on eleven three six nine nine in the issuance of a per curiam opinion the ruling was clear defendant  fisher may not rely on the warrant as a defense so that issue was off the table nothing substantial has changed in the form of the discovery to change the fact there's still a material issue of material fact as to whether or not mr lawson was told to leave multiple times and refused to do so there is no it there's still an issue of material fact as to the removal of the language from the complaint that he filed and that is actually incredibly important your honor there are several issues that are implicated directly by the way the complaint was drafted and the nature of the omissions i put before this court that if you actually look at the omissions and what was actually taken out of that complaint your honor without the language that officer fisher affirmatively chose to remove it doesn't describe any criminal activity it's speech based it's truthful based on mr loss knowledge that his son was not drinking and was advocating a son being given breathalyzer test to prove that he was not drinking it's speech based on based on me well what about the allegations that he was loud and after the language they used but that basically he was agitating at the thing i put forth a couple things before the court your honor  my client was advocating for a position that was being rejected by the police officer it's clear from the record that both parties were speaking loudly in that officer fisher was speaking loudly before my client even arrived and i think there's any question protected speech into unprotected speech with regards to the and if i may drive the court back to the extreme you saying that if somebody comes upon a scene where police are trying to process a group of people and start screaming loudly and people are becoming agitated that the police cannot take any action towards that person i would say your honor that i believe one what you described is actually different well no but you but you said something else you made the assertion that under that speaking loudly is protected speech and that can be a basis of arresting someone a contentious scene where the police are trying to maintain order with a bunch of teenagers that the police believe are drunk and the and you're saying that that time and place is one that does not limit someone else coming and starting to scream at the police hypothetically knowing that you don't think your client drawn or is far is screaming at the police if i think it's the content is much  is the volume i q you know it could be screaming i can't believe you're doing this or don't arrest my son if all the time people get taken out of houses in the police are trying to get that it could be an act of arresting people screaming if we criminalize everyone who objects regardless of their volume to the conduct of police we're going to have a whole lot of criminal cases and a whole lot of various yelling and screaming here with the intent and for the purpose of interfering with the police one a very clear point that the inconvenience distress disturbance or larm cannot be to the police officer has to be to a third party who's a member of the public number one number two there's a heightened standard of all coopted behavior with regards to an estate cooper when you're talking about one cooperate behavior when dealing with a police officer it's a heightened standard before it becomes criminal when it's truthful speech based on me and there's nothing in the record to imply that asa was doing was anything more than expressing an opinion stating a fact to see understood it and asking for the police to take appropriate action to verify that fact his son was being charged criminally that being said  i could i know your yellow light is on if i could take you back to your contention about the complaint being drafted improperly because of these omissions the omissions were a mission of law in the in the police officers statement of what this particular crime consisted of right i think your honor actually my right about that actually no your honor that's been a i believe a common misconception it was omissions of law and fact the law portion is clearly omitted however there was nothing in any of the re where the officer put his description of the events that could be said to describe the conduct that was illegal it didn't exist there was nothing in the police report that implies that mr lawson anyway impeded the movement of others there's no one in fact but if that's the case that's the judge's fault i mean if somebody goes in with a truthful warrant i mean a truthful complaint asking for an arrest warrant that is totally unsubstantiated that's the judge's fault that's not actionable actually run or if the warrant is contains not only omissions of law and fact the but for the omissions on one of the psych standard but on top of that there is the issue of this repea leave repeat if you do so in the field to disclose that mr lawson did nothing more than plead his son's case it was totally speech ok to just say i realize that we have this problem that i understand that there is the law of the case problem but if you if you look at the the complaint i don't think you're disagreeing with anything except for the one statement that after being ordered to leave several times the  everything else seems to be the same the same thing that you're saying you're correct your honor my argument my position is that that what is described in the complaint not only does not match the statute or any other part of the disorderly conduct statute i want to stop you right there actionable do you agree or not when the decision is made when you have three weeks to prepare a complaint to specifically omit all of the you didn't say that i'm sorry you want to make sure we understand each other you you just made a statement that the complaint doesn't describe anything that is a violation of the just orderly statute right right right and i'm asking you i do not understand that that is actionable i'm asking you is that actionable if it was done based on reckless disregard for the truth in deliberately you're ok excuse me if the let's assume that everything in here is truthful ok but it doesn't make out the offense but i do not understand that to be actionable are you saying that that is you submit an entirely truthful complaint to would judge asking for an arrest warrant for a crime that is not made out by your truthful statement is that actionable when the truth and you said  entirely truthful statement and i don't mean to quibble but i do believe that the omissions left what is dark there and asking you if it's entirely truthful without omissions it is a complete restoration no that would not be actionable you are ok so now we get to the point so you're saying that the omissions in what was omitted run of the fact that it was speech based conduct only the fact that's apparent on the face that's a legal conclusion your honor there was no restriction  there's no way that the restriction of movement but it but he's not say there was a restriction of movement a police officer didn't say that in the complaint right or understand that your honor he was being truthful he wasn't omitting anything he didn't say something that didn't happen well actually your honor we've we've argued the whole nine onwards the rule in the briefs the issue of whether mr last was repeatedly told to leave i believe is not only at the time was not it wasn't is not supported by the police report during the depositions in this case after we came back down directive i believe that's colored this is also the same officer who it is deposition admitted that someone asking him a question when he's talking to another person it could be considered criminal but as far as why it's criminal had the response come back from the prosecutor that no i'm going to be charging disorderly conduct in the prosecutor had written out the issue i think there would be much more protection for mr holland or for officer fisher that being said officer fisher was the one who had three weeks in the district court actually does a very nice job of laying out this timeline it was june ninth when it they received back the instruction the facts that it should be persistent disorderly conduct july second was the day that the warrant was actually submitted in the complaint was actually minutes we're talking about a period of three weeks for an officer with twelve years of experience to draft to undertake the incredibly simple act of drafting a complaint officer fisher the facts in the in the actual police report may please the court my name is frank scaled down and i represent the officer james fisher i think you perhaps would like to begin is the issue of where the is held the knowledge of the precise crime committed is not necessarily not necessary to find the probable cause of this and i think in the six circuits remand order the kind of pointed on it and there really isn't probable cause for that offense but there is a probable cause for another offense and i think it's quite clear the cases say that's ok it's entirely different but that's not what happened he didn't arrest him out there he went back there was a warrant and i think that the the cases well i was concerned that that it's a different circumstance where you're no longer a resting for the wrong offense out in the scene you're arresting for a particular offense as to which you obtained a warrant and i don't think that there are cases  say that you can then substitute a new offense just i mean one case i have here is a is an unpublished case number ten zero eight two in four nineteen that bendix five eighty nine and it happens to be to deal with that situation and it rejects the notion that you can substitute a new offense for a warrant as opposed to out in the field so i'm not sure how that plays out here well i think at the end i'm not familiar with that case i think it at the very very base level it goes into perhaps the qualified immunity analysis and the overall reason wellness of the officers conduct in this case when the officer drafted the police report his call was his recommendation was on the obstruction of official business right but ok unless the assertion that he was asked to leave multiple times and refused is irrelevant to the offense of obstruction i mean it would seem to you still have the problem that the prior panel found that the assertion that he was asked to leave multiple times and refused is potentially actionable as a false statement and the how does that and i think it disappears on remand by the differing status of i mean essentially when the case came before the court before it was really there was no depositions taken was  done on a on a very limited record so when it was sent back down the main depositions of the main parties in this was taken so i think that takes it into the ok up show it would seem to me then that if you  that he was in fact asked multiple times to leave and didn't maybe you have a different case but where was that established on remand i think a mega say i disagree with you know with the interpretation of pows and counsel i think that the report itself does establish that he had been asked more than once to leave the premises then your quarrel then you should have asked for a rehearing right i don't think that that would be necessary in the circumstance based on the fact that it is being sent back for additional it's not as if there was a legal determination or response to judge white question that we're not bound by law of the case when we're looking at the very thing document that the prior peril had in front of it my position would be that it is a general remand and that the court can really review the factual record if it's conflict and there's no reason that an additional review of the of the report would not be available to this court or otherwise handcuff this court into being to come to the a completely different conclusion based on the same document without having any discovery that set a new light on it i think that's correct i think ok oh it where in the report does it support that he was asked several times to leave well there's toward the end of the report and i don't have that right before me there is this there is  the suggestion that he has been asked before and then he finally does he does cooperate well that that was the but that's the very that's the very phrase that the court found objectionable where we're in the last advanced interview where the where it was in the record i know but the court said that wasn't supported that that's a conclusion that wasn't supported by what happened out there where in the account does it say that he was asked multiple times to leave the record has it there that part i mean i'd have to go back let me ask you this where does fisher say under oath that he asked him multiple times to  leave there's another part and i'd have to and i can supplement or or supplement by filing a notice but i do know that the whole lass deposition a page forty two and forty three the question is asked you remain with the on such several instances you told police that you were not ready to leave the scene several meaning how many more than once that's completely different from refusing to leave after being asked where are you what are you relying on for the support that he was asked to leave several times and refused again i'll have to look back at the record to give you an absolute cite i believe and i believe that it's part of his deposition trans deposition fisher officer fisher's but i have to provide a notice to the notice of authority some point if you'd like a specific ok well i mean it seems to me it's crucial to your case it's unusual that you wouldn't know but well i think i mean i think in this circumstance the issue of qualified immunity is overall arching umbrella that you have an officer who has taken reasonable steps to you know he's certainly not violating bright line rules or the types of things that would strip somebody of qualified immunity and make them personally liable there's no evidence here that officer fisher had any bad blood between him and mr hall also there was no reason for him and if he really to the charge that he selected well in any  i mean the police report was sent to the prosecutor the prosecutor made the decision on what charge to bring the officer provided the report and the recommendation to the magistrate under oath what did he say the report in the recommendation what this i'm sorry the report went to the prosecutor i mean went to the magistrate with his case f ahead of that it's also unclear to me is there evidence that the prosecutor went with him to the magistra i'm not sure about that i'm not sure absolutely positive the answer that question you're not claiming that i'm not claiming that today but somebody was claiming that the prosecutor german though went that may have that that may have been the case i just don't have a hundred percent recollection i don't want to state something that court that may not be absolutely correct and how did fisher come to did he testify as to why he omitted that language there was as a district core point in the was never any questioning to him on that issue well then certainly was no establishing the high level of culpability that he's deliberately or recklessly omitting that information there's simply it simply wasn't examined at the trial court level so that part of the record and that would be the burden of the plaintiff to demonstrate to demonstrate that just in the current i think that's part of the district court's rationale is as well there was no evidence biddy submit a request for a warrant and leaves out the part of the statute that would make all the room bells and whistles in the red flag come up like whoa this doesn't sound like that offends and just conveniently leaves it out you don't think that that raises a question i believe so i mean because there's no demonstration that it wasn't left out inadvertently of that there was nothing and that was again the district court's position but there's nothing i mean the the officer fisher brought forth the police report provided all of the information made available to the magistrate and there is no demonstration that again durst has no reason to want to pursue this particular charge prosecutor but the prosecutor to review it and evaluate it and make a recommendation if i'm charged i think i can speak to the practice in this situation it is the prosecutor who makes the decision of what charge to actually pursue qualified immunity analysis as well and that is another defense that was not determined in the previous opinion i think this court has the ability to and should apply the qualified immunity doctrine in this iteration of this appeal and i also i don't that's not to say that i don't believe that the establishing the new facts and being sent back down constitutes doesn't constitute an exception to the law of the case or firmly believe this was stating his opinions or his advocacy put but mr haas was doing a whole lot more than that and i think the record is clear on that that he's interrupting that he's delaying the ability to process the situation that he's he's speaking loudly that  he is being confrontational that he is being that he's not it's not merely asking questions it's not merely questioning the probable cause but there is a overall pattern of behavior here  but is demanding that he stays there until another child is left even though that child's parent was already there and i mean it's more i guess i make that point because it's certainly the record is clearly shows it's more than just having some questions for the office you clarify for me what documents were presented to the magistrate obtaining the arrest warrant i believe that was the you know the in the deposition or reading it was the in the report itself and the recommendation of the prosecutor i don't know if there are written recommenders that's i wish i knew the answer to that i don't know in the deposition testimony i recall distinctly though that the recommendation of the prosecutor so i guess based on that either there is a document or two he was actually actually there you don't know which is and when i'm looking at the complaint that was filed in the u s district  court and that doesn't really have very much in term wondering is there any other document that your client to share signed whether under oath or not other than the one the big long clues record which we all have and to this one page document filed in lake county court is there any other document your client i don't believe so there is a warrant but i don't believe  his signature is not on there would be the magistrate's signature that is on the ok so just following up on that because i'm not sure i understood your answer where where do we look in the record to support that that is in his deposition but you can't i can't provide a pinpoint cite ok and then one other thing i'm curious about your statement that you said the prior panel did not decide qualified immunity because it seems to me question of anough to show a violation of constitutional right ok thank you you're welcome thank you very much  brought it with him and i asked him specifically was a question and answer how did it go when he says it's very informal the measured asked me tell me what happened i told him my version and then the only question is what we're going to do with the warrant never did he say that i gave the magistrate the copy that i asked what he told him as opposed to i told him what happened or what did you tell him happened i can actually get to that right here your honor  is what he says he told the magistrate broke your honor it was a verbal argument he was making demands he did not want to cooperate period and then he said he referred to measure looks over the complaint summons more books the prosecutor's ruling as any recommendation there actually is probable cause than for another offense or another offense other than the case that was already brought up by judge white the infield in the field issue versus the worn issue i think still preserves it  more to the point your honor i would argue that there was no probable cause for any other charge again speech based conduct he was advocating for his son and as far as the delay that it's i believe it's been incredibly overblown first and foremost record is clear when asked for his license said you called me here why do you need why do you need my license and then they said well we need it for paper key provided his license he filled out the paperwork he wanted to ask questions about why in the specifics of what his son was being charged with he had under the statute he has to have a right to take the action he takes legal and reasonable right he is called there because his son is a minor and he has to take physical control of his child that is the right and the obligation which he is undertaking have a right and an obligation to make sure that  twelve fifteen minutes the average parent was there about ten minutes mr klaas was not even the reason that they were there till two o'clock in the morning he had already left before the last parent had arrived officer fisher was able to discharge more children to their parents  volquez despite having the engagement with mr hall asa this was not a lot of time how many children are we talking about we're talking about i believe there were a total of five children and two adults who were not of drinking age  that had to be discharged to their parents one more question so in this complaint if we omit the language and repeatedly asked to leave before actually doing so i would think that being argumentative disruptive and continually interrupted offices well attempting to conduct official business would be would be enough assuming it were the other offense i mean i realize that  the latter problem probably isn't a problem because there was enough else in there i don't know if you want to respond to that i don't know that it means anything would your honor of being argumentative was he debating with the officer in advocating for son's innocence yes he was being disruptive i don't think that the police report shows that he was disruptive and only pushed for shows that anything couldn't get done continually interrupted officers again i don't believe that's validated by the police report he talked  he was told talked off for fisher officer fischer turned around and engaged him in again from the mindset and as far as the culpability here this the officer that testified at his deposition very early on that if i'm talking to someone and someone else asked me a question it could be criminal this case is that it's essence your honor about the right to question police authority there is a limitation and i knowledge that but when you're talking about nothing more than truthful speech in the ability on behalf of your child to ask about the rightness or wrong police officer's actions without threats of repercussion i believe this is a very important case and interestingly enough the one thing and also officials report that just i think screams off of what this is about leave now or you will be arrested and he complied when he was told that you were here's your choices you can continue to do it you're doing well rescue or you can leave my client complied and he left with a state which should have been leave now and i'm still going to charge you and that's actually what happened it was a month went by the this complaint that the facts that police report cannot support the allegations in this complaint all through the emitter you just somebody we're told we've now and the person left at that time the first time the person is told to leave but they could not be charged with disorderly conduct given this fact pat prohibits and the police could say leave now and the person could leave but because of the actions that the person had already taken conceivably somebody could be arrested for the disorder conduct that happened before he willingly left upon the police first command conceivably feebly but you're just saying we're sergeant that if not in this case what is your best case if you had to where this court is actually held that a statute for get a prosecutor telling you it's ok to charge on this a statute making speech based content alone illegal was insufficient for an officer to be receive qualified immunity because the requirement officer know the first amendment is an inherent right that absent the fighting words and some other restrictions which are clearly established cannot be made illegal it's not affirmative defenses is is upheld the argued in their brief it's a right and it's and with few exceptions in controver and the last one which we haven't gotten into your your honor silverstein v city of dayton for forty five thirty three zero six in ruling that consulting with the prosecutor provided cover on a qualified immunity and with proof of reasonableness by and of itself  court not only did not cite silberstein did not distinguish silberstein ignored its existence as i would argue is ignore the holding of this court eleven three six nine nine and chose to go outside of the jurisdiction in the district court's opinion they cited a series of cases not one of them from within the six circuit now one of them from within any district court within the six survey but it seems to me if you're arguing about the first amendment that would be a defense to the criminal prosecution but the officer wouldn't wouldn't have any liability for that as long as he was truthful i mean you still get back to the need to to find that he told an untruth and i i i don't disagree with that your honor to an extent i do believe that the intentional and he can't say was anything other intentional to excise that large section of the statute and to intentionally there was also not a single fact provided that even it had he not excised the language that could have supported that position and then there's the issues of the continually interrupted not supported by his by the police report also fischer broke off and went to do what he went to him and he repeatedly told to leave and we've already been over that ground at nauseum thank you very much one one other question do you have a position on whether went with him to the magistrate where the prosecutor actually was there your honor right i don't believe he was from the testimony in again it's when i question about that there's no indication that anyone was there but him now he did have the prosecutor's recommendation but fisher testified truthfully your honor that actually was briefed rather heavily in the last time around where i broke down that ohio you can either testify for a warrant on a mystery and like this it can be something as simple as the presentation of the signed affidavit and that to his knowledge it testified truth to the other issues your honor is whether he testified truthfully or not is completely outside of the realms of mr de models knowledge and ability to make a comment on because he wasn't there that night and he wasn't