they please the court my name is david mark a zero present the appellant clarence dean roy i'm joined by ben clayton a counsel table this morning the main thrust of our argument on appeal is that this case should have gone to a jury and the reason it didn't is because the of the district courts eroni is grant of summary judgment as to qualified immunity that took away or damages claims in resulted in a bench trial so we're asking this vacate the final judgment and the summary judgment and remain in this case for a trial by jury if the qualified immunity analysis is a two part a two part analysis two prong analysis and they're very distinct prongs to the st prong is was there a constitutional violation that's a very necessarily fact intensive fact specific analysis the nd prong is whether the right that was allegedly violated was clearly established at the time that's a purely legal analysis it's basically a survey of case law you're trying to find case law that was directly on point at the time in this case the original district judge judge james found that there were genuine issues of material fact as to whether there was a constitutional violation that's the st prong and specifically he found there are genuine issues of material fact as to whether there was probable cause to issue a summons he then went on to the clearly established prong and found that the the alleged right was clearly established at the time the city and sergeant booth moved for reconsideration and the succeeding judge which was judge doty granted reconsideration  and he said in his order ultimately granting summary judgment in its original ruling the court determined that there are genuine issues of material fact for trial as to whether royce suffered a violation of his st amendment rights the court does not reconsider that ruling so the court confirmed its finding as to the st prong there are genuine issues of fact as to whether there is a violation i'm not disturbing that he then went on to say the courts analysis in this ruling is limited to a reconsideration of the nd prong of the qualified immunity analysis whether the rights that were allegedly violated were clearly established however when judge doty went into his analysis on the clearly established prong he for whatever reason made factual findings as to probable cause and ultimately concluded there was probable cause and granted qualified immunity well there are no findings of fact on the clearly established prong it's a survey of case law you're trying to locate case law a case that's directly on point that establishes the right that's allegedly violated obviously you have to be aware of the facts of the instant case but you're you're looking for a case that's on point there's no place for findings of fact there's no place which your best case that would inform us as to what constitutes a sufficient investigation as i understand that a you're right i mean you can get into the facts here but as i understand it the allegations of the plaintiff is that the defendant officer booth i believe is his name that he should have done more rather than take somebody whose word for what happened that he did not conduct a sufficient investigation before he acted toward mr rule is that correct that's correct and what is your best case as to what he should have that the officer should have talked to the other officer in this case we have officer booth who apparently got there after the fact they were already several officers and in the vicinity his officers didn't talk to any of them if he had talked to them again it i don't think you can you can you can hang your hat on for probable cause i'm bound by what i knew at the time but i didn't know much because i didn't talk to anybody or ask any question what would he have learned he talked to the other officers to take this one step further i assume that had he conducted that type of investigation  your position is that he would certainly not have taken the action that he did with regard to mr roy i mean none of the officers saw anything happen they were there for another reason they were there because of an altercation involving one of mr ward's associates and it's not just the officers he should have talked to we argue that he would have talked to other witnesses the other witnesses would have testified that mr royce never crossed that he never followed and never followed miss falcon in again we would consider that to be exculpatory evidence now the important thing is miss falcon testified at the criminal trial that she she was followed whether she was or not or whoever did it mr royce is it wasn't him after judge booth was already there judge judge booth sergeant the sergeant booth said the entire time i was there mr roy was standing right here so if he had investigated for they would have discovered it couldn't have happened it couldn't have happened after he got there and it's just the testimony from the victim was it didn't happen before he got there now again are i  make that argument on appeal because i want to preserve the argument but our main argument is that should have all gone to the jury the incorrect ruling was the grant of summary judgment judge doty considered the judge dodi's order granting summary judgment cannot be enforced as written it makes irreconcilable findings in the same order and findings on a just a dispositive issue just one part is the disputed issue of material fact there was there was a disputed issue of fact as to whether judge sergeant both had probable cause to issue some things and that was ended up being the crux of the case and judge don't judge doty in his order again confirmed that fine he said that this court's finding is that there are genuine issues of material fact as to whether there was probable cause both judges agreed that that was the finding of the court where judge doty error then was by making factual findings in the context of the clearly established analysis in his order makes irreconcilable findings st he said there is a genuine issue of fact as to whether there was a violation that he says on the clearly established pro established problem the right in fact was clearly established i'm not here going to argue today that judge james's statement of the clearly established right was correct i argued below and in my brief that he it wasn't in it wasn't just because it was not just that it was too general it's because it was the wrong write it was a th amendment right we have a st amendment retaliation claim here that right w reasonable that's the clearly established right that case is directly on point it was clearly established in two thousand and fifteen you wanted i know you have a nd claim you want to pivot to that one now you challenge the ordinance directly as well right we challenge the ordinance on its face correct well and the argument there if the judge judge james also granted summary judgment on a gnat claim he provided no analysis that he goes through  we don't challenge the content neutral any of that which is why we get to two to these to the for profit analysis judge james basically set forth the analysis and then it's a dixit said this is what i now the court relied upon two cases the garner case and the jordan case the garner cases a us supreme court case jordan is a louisiana supreme court case both of those cases acknowledged a limiting  jordan actually quotes garner for that proposition in both of those cases the court applied the limiting construction and found that based on the evidence before them there was no violation neither court addressed the constitutionality of the or garner addressed the state statute on which the monroe ordinance apparently was patterned there's they're similar in in jordan actually address the monroe ordinance neither case addressed the constitutionality of the statue ordinance that was not before the court you can't point to silence and say well those courts applied the limiting construction they didn't strike it down as unconstitutional therefore it's argue is is they it does not provide it doesn't pry provide specific guidance for law enforcement officers or to the public as to what's constitutional what's not god doesn't have the word forseeable it does not have the word forseeable it's not subject to the jordan limiting construction correct and again i am neither of those both of those courts founded the based on the evidence before them there was no violation of the statute in the  order neither of them addressed the constitutionality you can't rely upon the silence of those courts in applying the limiting construction to say therefore the limiting construction is constitutional and it seems that that's one of the heart of the whole point of the new construction is to avoid a const al problem correct i think you may have a valid point as to the capsule so let's talk about the council because as i understand the catchall doesn't have the limiting language that jordan relied on is that your point i believe that that's that that's correct and that of course would take you away from taking away from whatever reliance you want to put on jordan right you're not going to hold the catchall doesn't hear the actual copy say by jordan correct so the question is what saves the catchall otherwise it's unconstitutional i take it it's this cost to channel carve out that it's not prohibiting anything that's unconstitutional that can't say it's constitutional because the statute says it's constitutional have you come across any case that deals with that kind of carve out language cite i tend to be sympathetic that a carve out doesn't really give free citizenry any sense of what what is to be expected rector and i think that language is kind of self serving and it doesn't serve any point i'm not aware of a case that has addressed that i think any court would would acknowledge that that's certainly not going to save whatever follows by saying that this is apply only applies constitutionally all we're left with is if you do anything about the serbs or alarms the public you've committed a violation right under the under the under the kettle in again that's  or thrown out on summary judgment i think the district court clearly did not have did not even go through the analysis i don't think you can rely upon a complete lack of analysis to to throw out or or facial challenge i would also argue that if you reinstate our facial challenge you also reinstate or due process claim the reason that the court gave for dismissing the due process claim was that we did not satisfy in the now which requires one of three things the st one being there is a a written policy municipality if there's not a written policy the written policy of course is the ordinance the district court said well i just found that the ordinance is constitutional so you don't have a written policy if you reinstate our facial challenge you  honor good morning your honor is in may it please the court my name is brandon creek bomb and i represent the city of monroe and james booth in this matter i'll jump right into it to respond to some of the arguments and i'll start with the most recent one  st the city disagrees that there is still an over breath challenge in this case the petitioner the complaint this matter did raise an over breath challenge but as this case is going forward and certainly in the briefing you can search the entire brief the word overbroad is mentioned one time and that's in the beginning of the brief was responding to what the district court had done in this case they didn't brief the standard on over breath we just think that's been forfeited at this point in the case and so the only thing is a vague challenge morning or for that on a are turning to the facial challenge the vagueness prong of this your honor talked about it limiting construction of the statute and the limiting language and you're right in the state of jordan case they talked about language that would  disturb or alarm the public the city's ordinance and a catch all phrase that says in such a manner as to disturb or alarm the public we actually think that's more restrictive than the language that was it issue in jordan because in jordan an officer could just see something that he thought might later disturb somebody walking by in this case we think it requires an actual disturbance of the public for it to be a violation of the disturbing the peace statute so it's not them something that just foreseeable he could to serve the public it's something that's done in such a manners to actually disturb the public and so we do think that limited construction which requires that it be vile or it or boisterous or provocative in and of itself does apply to the casual statute and saves it from the vagueness you're saying under be the actual disturbance actual to stop whereas for seeable only requires the prediction of a distinction of that in so we think it's actually more narrow and ordinance which of these we save we think saves the constitutionality of this particular section is your honor pointed out we are unaware of any cases and certainly the point of conceded that he was unaware of any cases the talk about this language especially carves out and says this doesn't apply to protected conduct my best research in this case and i think the reason for that carving out it was in earlier supreme court case that kind of said you know maybe this is a little too broad across to expressive conduct and so a couple of years later in one thousand nine hundred and seventy nine i believe the year was the monroe city ordinance was amended to carve out what they thought might have been the problem with an earlier state statute and so for forty years we've had this carve out in here and it differently no problem with having the carve out the question is does that cure any problems that might otherwise exist are you relying on that carve out to save the statute or to save the ordinance not entirely relying on the limited construction and the carve out we think that both provides ample guidance to officers and i'd like to reiterate to this court you know a facial challenge is especially strong medicine and i think in a vegas challenge is doubly so because you know you've got the the  protected conduct and we've got this limited construction but after the carve out i mean you're aware of the general principle that courts don't rewrite rewrite ordinances in order to save current year afterwards but i think th specifically at her that she was scared she feared for her safety and so based on that the court said hey over the officers of pain she was disturbed the peace was disturbed this is the kind of conduct this ordinance prohibits you know also you know the catch all was just one facts of this case being in your view rather extreme director for the alleged talking and what and what not but but the words disturb alone i wonder if that creates any concerns in terms of the heckler's veto i in garner versus louisiana and that that type of interpretation has been around for forty years you know there's been no other successful challenges that i'm aware of to that particular statute i know this court considered language similar and the current louisiana statute in either land back state of louisiana that's held that that particular type of language is unconstitutional i do know that the th circuit which we didn't cite these cases in our breezewood into a research the th circuit has some cases where it talks about that type of language and it is upheld cases like that so we don't think there's any inherent constitutional problem with the foreseeable disturb or along problem of the schedules but just to be clear then if i understand you were looking at your sort of invoking jordan to limit the catch all it is your view that i guess it's not just forseeable it's also disturb or alarm that's not just you know i'm disturbed by something that was said on the senate floor politically it's violence boisterous crowe's words are pointed imported into disturb correct you know if we  catch all phrase to involve words and conduct there's got to be some act there's got to be something that's done that would that would lead to an inherent breach of the peace which is some of the language of the older cases used and we think the casual cacho portion is nearly tailored to encompass only that type of conduct if somebody is peacefully shouting on the side of the road i mean you've shown if they're not actually doing something to violently or be boisterous or disturb someone else in their conduct that we think that's perfectly constitutional there's no history of arrests for the city of monroe certainly plaintiff had the opportunity discovery on that point we don't have a rash of cases out there where officers are restricting fairly innocent conduct using this catch all phrase you know so the way this word is supper and for the better part of forty years that we're aware of it's been perfectly fine in its operation there's been no confluence of street preachers or anybody else who are peacefully expressing their views in public parks on sidewalks who are have been subjected to the statute for this type of car thing what triggered the action by the officer here was not just the words corrupt was the following of the individual correct your honor and another and i think sergeant prove me that very clear in his testimony i think a deposition he said i wouldn't arrested him three were just saying offensive things the st peters are out there all the time they they've been preaching for years at this location or at least a year at this location we've had no issues with that it was the words plus the conduct in this case it worked for the conduct that crossed the line as far as you're concerned and so if you look at just the falcons testimony this person was acquitted yes they were acquitted but although i would i would note that the that the city court judge who acquitted in his reasons that hey i really think you did this i think it's more likely than not that you do this i just don't think the city has proven its case beyond reasonable doubt it so you get a caution to mr roy i don't engage in this kind of conduct anymore but i'm finding you not guilty so we think in this case if you look at just the falcons testimony and i think the record five hundred and eighty one thousand five hundred and eighty two has a good synopsis of what her testimony is she says this man followed me across the street he was within one to two feet of one to two feet is the link the note from my head you know that's two feet away from you the faster i was the closer he got he was directing things directly at me he was saying you're poor you're a little lesbo your father's the devil you know we understand mr roy disputes all of this in claims that he's innocent of the conduct but probable cause is a different different analysis than actual guilt or innocence and so if like me to i'll go ahead and turn to that particular point is the triggering conduct wasn't obviously not words alone it's following words plus actions wor vary the actions of following her across the street getting closer to her speeding up getting right behind her within one to two feet and saying these things directed at her we understand that there's a difference and i think the case law the supreme court and other courts have made a very big emphasis there's a difference between someone shouting on you know shouting honest recorder versus directing something you know something directly at somebody and i think we cited in the district court below what i thought was a very good opinion on that issue and that was  where from the rd circuit which had a christian lesbian and one of these i guess street preachers or whatever you want to call them directed specific statements of this woman who say you're a lesbian you're a christian lesbian you're a little lesbo you know you play with the dogs in the rd circuit said that changed the analysis right there because you were open air preaching you were espousing your views you then turned and you directed your words at somebody and that rendered those fighting words which were unprotected in that context and so we think that a reasonable officer who gets this report from a victim who comes to him she's shaking she's scared you know she relays this to him on the scene and identifies the perpetrator and says this is what happened we think that that's sufficient under this ordinance to establish probable cause that that's what i want to be precise because i thought you were saying earlier that it wasn't the speech alone but it was the conduct where saying under the rd circuit you could directly read ski to cover the words alone correct correct we think there's more in this case but we think we can get saved all of the you know on the other courts of hell that the words alone could have been done but we do think their words and conduct in this particular case the conduct being with the words alone in your view i put sounds like a hypothetical but the words alone would have been enough your view under under surveillance the yes and under the gillis case in the rd circuit and we started an th circuit case not in a circuit and a circuit district court case as well for some similar language that was held to be fighting words but we think the words and the conduct in this case is what matters we think we can win on the easier problem of the words alone were enough but we also think that the words plus conduct gave the officer more than enough room to conclude that probable cause existed let me ask you before you move on to the next issue with regard to the as applied challenge is it appropriate for the court to engage in a probable cause evaluation in connection with the as applied claim so we think it is your honor we think that probable cause  bar to the as applied challenge because we have probable cause to arrest then there is no constitutional violation that occurred and we want to make clear is the supreme court in in a different context just a few months ago held that probable cause is a bar to most if not all st amendment retaliation claims and i think that would include that's need sources part of which just came out a few months ago and so i do think that that would also reach the probable cause analysis of the as applied claim and in the plaintiff's briefing the sole that they hung their hat on with respect to the as applied challenge was there was no probable cause in this case so i win on the as applied challenge turning to the issue of probable cause of unity we don't think that there's any inconsistency  the judge's rulings in this case judge james initially held that there were issues effect concerning probable cause to address your question judge jolly he did not suppose but point to what specific fact itself was at issue judge james gave a list of facts his ruling that he found were material in this case and the only fact that we could find that was genuinely disputed in that list of facts was the fact that roy claims he didn't commit the crime of course whether one is guilty or innocent in and of itself doesn't determine whether or not there was probable cause in this particular case as this court as well familiar probable cause is a totality of the circumstances analysis and it's one that's viewed objective lee without the benefit of hindsight and so we think that there a probable cause in this case and the district court did when it ultimately conducted a bench trial in this case and said as a matter of law there is probable cause you know the facts which are well for me with that i will run into to detail we began following her across the street saying these things directing at her relying on just a hunch that the officer in that case you had nothing to support his claim other than just his bare hunch that something might have gone wrong here the officer was on the scene this victim came up to him he observed spoke with her that's the classic witness identification of their attacker of their suspect or whoever it is on the scene as the in dish iraq the reliability there's nothing that officer booth knew at the time he made this decision to issue a summons that would have caused him to think that jessica falcon was a liar that she went around the corner and fakes tears to come up to his vehicle and none of that would cause him to dissipate probable cause in the district court found i think in both rulings the both before the change in district judge and after the change in different district judge  that that there was nothing that falcon you know there was nothing to lead officer booth to believe that falcon was making up the story and so based on that information what he knew on the scene we certainly think there was probable cause as a matter of fact even if you disagree that there was probable cause then we get to the qualified immunity the nd prong which was was there reasonable belief that there was probable cause if there was an actual probable cause i don't know that there are many cases with the facts like this one that a reasonable  objectively reasonable officer sitting on the scene wouldn't believe that hate this particular conduct this particular words something happened in indy officer booth went to his vehicle and looked up the statutes compared it with the simple assault statute compared to this disturbing the peace statute and so he did what i think a reasonable officer would do in this circumstance to make sure he got this right and so we think that at least there's qualified immunity and qualified immunity protects all but the plainly incompetent or those who knowingly violate the law and i don't think any rational person looking at this or i don't i don't think i think looking at this that sergeant booth was plainly incompetent or that he knowingly violated the law in this situation is just more proper and more convincing by the record and we think there are certainly ample room and ample evidence in this record to determine that actual probable cause existed if you determine an actual probable cause existed rather than going with the reasonable belief then under news vs bartlett almost every claim drops there's no constitutional violation for the th amendment claim for lack of training because there was probable cause there's no st minute retaliation claim we think the as applied challenge goes by the wayside and so the dominoes fall with that particular determination but if you get to the reasonable leave the reasonable belief problem we also think that the appeal in these cases is somewhat limited and foreclosed in a sense in that the judge did conduct a big trial on the injunctive issues and held that there was actual probable cause and that no injunction was warranted on that basis he found that that defeated the probable the as applied challenge following that and there was no real effort to appeal what the district court judge did at the actual equitable relief phase of this trial and reason lete leach thank you because actual probable cause defeats some of the equitable claims as well at the threshold reasonable belief you then still have to get into the murky waters of the as applied fall right then and you don't have to go much further than that and we think there's ample ground in this particular record to do that and so i see that my time is running up your honors again the th amendment the th amendment claim they mentioned briefly in passing there is record support for the fact that our officers are trained in the st amendment they in opposition to that all the defendant has pointed out and said was that's not enough we don't think that's enough to overcome a motion for summary judgment that supported with evidence in the record and so it closing your hono you know like i said a minute ago qualified immunity protects all but the knowing the knowingly knowing violators of the law in the plainly incompetent sergeant booth was neither of those in this case the city's ordinances stood under starved for forty years there's been no of challenges there's been no just claim after claim of constitutional violation i think it would surprise many of them to find that this particular warden is where the catch all phrase was has been unconstitutional for forty years and no one knew it it may be the you've got three minutes well as to the facial challenge i certainly don't think the fact that the ordinance is not been challenge for forty years is anything to rely on to state that constitutionally challenged it on its face and we can we're talking about the language of the ordinance here today i think the problem is the district court should have been the district court did the district court found that it was constitutional and didn't engage in any of the analysis that we're engaging in now that the district court seem to hang its hat on garner in jordan which as i said before didn't pass on the constitutionality of the organs or the statute and is as we were discussing in jordan involves different language in addition i think that  in such a manner as to disturb or alarm the public is followed up by or make such a disturbance imminent well i think that kind of takes you away from you there has to be actual action involved or to makes or to make such a disturbance imminent to the extent we're going to discuss the language here today i think that's that's important because that completely it says or so that that completely changes the original statement in such a manner as again this is all analysis that the district court should have engaged and did not the district court granted summary judgment on our facial challenge based on no sufficient grounds  and i think that the statement that this court this court cannot affirm based on the finding that there was probable cause for the simple reason that the finding of the district court was both judges judge james and he was there are genuine issues of meant to real fact as to whether there's probable cause that was the reason that judge james denied summary judgment on qualified immunity judge doty reaffirmed that finding and said i'm not disturbing that and then went into the purely what was supposed to be the purely legal and i mean trying to pin you down hard is well it is the district court went through roy denied making the statements or taking the actions alleged by felt and no one besides falcon and roy actually heard their conversation sergeant booth this is all on page eight hundred and sixty of the record sergeant who undertook no investigation other than speaking with felt and there was a long history of demonstrations at the intersection on the night in question complaints by both roy and his followers and customers of the bars had been handled by the police department those are the findings of fact that judge james made obviously those are the findings of fact that he determined created an issue of fact for trial judge dodie again did not disturb it so there's nothing to affirm you can affirm the finding of probable cause when neither district judge found that there was probable cause that the the final ruling of the court was there issues of fact  as to whether there was probable cause meaning whether whether there was a violation and on the other your argument cases submitted and this concludes our or powells case for the warning