fifty's is decided on the record and we move to the sixth case or the fifth case today for all our recent versus village of mccook  we have submitted that the ruling was although permitted under the federal rules premature did not take into consideration a request for filing of an amended complaint the state criminal action against me those matters were litigated before the voters amber forty trial judge and the appellate court of the state of illinois and those stand the question here only is whether we i would be allowed to proceed in our claim under forty two u s c one thousand nine hundred three for violation of the first amendment rights that every citizen of this country enjoys and then the ancillary state claims that were brought as well pursuant to that that is the issue it's important to know that members of the panel that the criminal case that was tried by the cook county state's attorney alvarez against me and bridget involved alleged actions that i was involved in this case before the judge shater involved actions that mccook and its agents and or employees were involved in a completely different analysis the facts are as stated  record that you know on the date of the event i was a passenger in a vehicle not driving that the driver of that vehicle that i was a passenger in was stopped was not ticketed at any point conviction no i'm just setting out the facts as they are so the debt issue has been litigated again we're not here to relive a gate the state court ruling or the appellate court ruling this is about the violation of constitutional rights that every citizen has to use public ways and do so without being reasonably prevented or falsely charged so the issue preclusion that judge shader relied on here collateral  the third element whether paroch of his alleged facts coming to show that his lawful campaign a cavity as opposed to his unlawful signed destruction was quote at least a motivating factor into the decision to arrest him so the judge went into the facts without allowing us to develop the facts will did and i was there probably was to make theorems the judge found that there was that when i and you were convicted but the probable cause is not an the only thing that we stood on and remain steadfast in pursuing is the one nine hundred eighty three claimed first amendment violation claim and the state ancillary claims of defamation intentional infliction of emotional distress and negligent my opponent was the mayor of and his brother in law was the deputy police chief then you know where he has fifteen relatives on the payroll and only won the election by sixty eight votes so when he woke up on the day of election he had twenty five percent of the votes in his pocket all right and wanted to serve both as a mayor and a commissioner which is provide for bit by state statute but that's a separate issue the point of the matter is that open roads public roads are for public use and anyone including someone who is wanting for office can be a passenger in a car on a public roadway with his materials in a car and be free from harassment by the local police when the risk was worth calling the mayor and he was it was it was pulling that vehicle and children in their own hundred twenty dollars registered humbly to police department i think they have about the last time i checked about thirty five police officer for a population of two hundred thirty people are well protected a party in the prior litigation that's undisputed and that there was a final judgment on the merits in the prior litigation that's also undisputed two additional requirements under illinois law but the party against whom a stoffel is being invoked had a fair and efficient opportunity to litigate the issue and finally that the issue to which preclusion would apply was one that was necessarily decided in the end mind case mr parade could dispute that there's an identity of the issues he disputes that the issue of whether or not his arrest was propelled by a political agenda was actually decided in the criminal proceedings any further disputes that that issue was necessary to the judgment in the criminal proceedings he's wrong on all fronts whether his arrest was brought about due to his political rivalry with the cook's mayor was actually litigated and necessarily determined as part of the state criminal proceedings and that transcript from that proceeding which is part of the record before the court clearly bears that out judge kennedy who was the criminal trial represented in his briefs that his defense merely consisted of refuting the state prove the elements of the offense with which he had been charged is belied by the transcript at every turn through cross brought up here this morning about the driver of the car wasn't arrested wasn't charged with anything but i was these are all issues that parole questioned every witness got questioned about this in the context of the criminal trial these issues were actually litigated and you have to are representing in his opening brief he didn't get a fair opportunity to litigate these issues in his criminal trial we see an about face when reply brief comes and when faced with this transcript mr perot admits as he must that these issues were in fact actually litigated in there was a contest in the context of the state criminal trial yes to you know was my arrest propelled by a political rivalry you know that's a concession it's an important concession that he's made it appears on page four of his reply brief where he says defendants focus on the arguments made by the plaintiff in criminal trial about the defendants detaining and arresting him based on political motives or bias which meets only the first part of the third element for collateral estoppel so now he's saying ok yeah i litigated the issue but the judge didn't decide it and it wasn't necessary for the judge to wrong the judge to decide ok what mr price has hung up on is that judge kennedy didn't make a specific finding of fact to the effect that your arrest was not politically motivated judge kennedy didn't have to do that in order for collateral stoppel to apply she said enough for us to know that she actually passed on that issue and she  claim that mr price is now trying to litigate in federal court as being speculative and to that end she said quote as far as my decision in this matter i cannot rule on conjecture i have to deal with the facts of this case program so you actually have the legal arrest but through the proper reasons i've given a lot of thought to that question and i thought that might be something i was asked today i can certainly conceive of circumstances where you could have an a that would be deemed lawful unsupported by probable cause yet there would be room to argue that politics or political game and normally for correct it would be a situation where the police response would necessarily match the offense at issue when you're at a political rally you step out you jaywalk you get arrested something like that where the extremes are a bit mean here or that's not our facts here i mean we have almost we have a political campaign it's you know accused of them was convicted of destroying campaign signs you know and you know we've hear we've heard today already i mean this is out a first amendment claim out of all of that in federal court now and i would point the court to his to his actual pleading in count two of his complaint this claim he alleges is described here in defendant's falsely  trampled on my first amendment rights he's still contesting that his arrest was invalid and he didn't do the act and i just want to make one brief point as well he mentioned hack bar that was an argument that was asserted before the district court it's not one that we've brought as a basis and alternative pieces to affirm the judgment on the pleadings ruling that's before the court we have dropped that argument it has no role in this appeal and cases that cite it when there are many in his brief have no role in the subpoena oh i don't so point out another point to clarify is that the district court never determined nor did the defendants argue that because the officers had probable cause to arrest that is first amendment retaliation failed on that basis nobody made that argument and that's not what the district court's ruling was and i think the contentions to the contrary that have been put forth in the written submissions before the court are misleading the district court very much  acknowledged that this this circuit has not determined that issue when we have you know the ebro is in the three year decisions telling us that now that's an open issue right now and the district court did not attempt to to rule on that and did not reject this claim on that basis and in similar vein i'd like to point out the lumping together of the state while claims with this first amendment retaliatory arrest claim there's a lot of lumping together the briefing that's gone on about you know all my prior suit didn't have anything to do with determining the emotional distress i suffered as a result of this and you know occurrence that she was confusing again the district court simply dismissed the first amendment retaliatory sign and then they come up with the witness they don't know what he was wearing and not very much i guess and then he's the one that wanted him say that's the guy whatever you know obviously he said it's wrong and all that but so there's there are two separate things and i guess that's the second one that is the whatever you want to call it it was a head and neck use ation for a violation of an about they try to use smoke and mirrors to focus on that but that's not what this case is about this is about you know the criminal not the criminal this is about the  by the agents employees of mccook and whether they violated my constitutional rights not about what i did or didn't do or allegedly did that's been decided and we're not here to really really get them to basically say your first amendment c survives was not waked up by the criminal trial that's correct thank you count thank you if we take it