case here they'll ultimately comes down to officer myers personal knowledge of facts at the moment of mr mackey's rest we contend that out a minimum there is a genuine issue of material fact as to officer myers actual knowledge underlying the district court's finding of probable cause and we contend that the the record and officer meyers declaration is entirely lacking sufficient evidence to support  finding that officer meyer actually knew at the moment of the warrantless misdemeanor erast that a crime was occurring in his presence so under the fourth amendment probable cause we don't look to what the state law requires yes your honor however so why does worries worries presidents you know whether it happened in his presence in for purposes of the federal in the federal rayna that when you have a minor offense that the officer has to have personally observed the offense before arresting the individual that it i believe and i will i will reference this case and may need to go back and take a look at that again but i believe that the henry versus us case three sixty one u s ninety eight  i believe that would be a case that would support the fact that a crime would need to occur in the presence of the police officer in other words under the under the fourth amendment if you could not specifically which case that i recall reading in regard to in regard to that but the i remember the case the thirty u s supreme court was addressing in relation to minor offenses that the officer had to have had to have actual knowledge and and i will concede that even if an officer does not have to personally see the crime the officer has to have actual knowledge that that a crime has occurred  in other words why was there not probable cause putting aside the requirement of whether or not he had to be present with that yes i think your honor when looking at the audio evidence the video evidence and the officers testimony his his i should say his declaration as well as his own police report when looking at those things the facts that officer meyer can testify to what he had knowledge of was there was a he was called because there was quote a preacher that is outside harassing customers he showed up to the d m v there was a line of people he heard religious content being read he asked two questions of the security guard within a twenty eight second period from the time he write to the time he actually handcuffed mr ma the two questions were which one the guy with the book second question tell him to leave here is a question of who he asked that question of the security guard officer meyer then immediately walked directly over to mr makki from an angle and slightly behind without mr mack even being able to see him take the bible and says you are under arrest immediately places him under arrest and never questions mr ma cause would have to be shown either under california penal code six o two point one b or under the regulation eight hundred sixty so if we first take the regulation eight hundred sixty that is a situation the element of the crime is the lack of a permit and there be a demonstration or gathering in this case mr officer myers entire basis for believing according to the briefing that mr makki lacked the permit was the fact that on december twenty four two thousand and nine more than twelve months earlier officer meyer had gone to the same d and had come across quote unquote a group of people who were engaging in some sort of religious speech more than twelve months earlier and in that instance the officer my are now uses that to say that it's my belief that they didn't have a permit then more than twelve months earlier and they must not have a permit now when they say they were the same group of people we don't know for sure your honor how of them was the same as the sky corner mr cornell who was the same and i will i will say that mr makki also was there on december twenty four however what happened on december twenty four was mr makki had left and sometime thereafter mr officer meyer had arrived on december twenty fourth two thousand and nine and how the short conversation with mr corn auto so when meyer mackey wasn't there twelve months earlier that's correct or if your point is that the only evidence in the record that the officer could have relied on on the permit requirement probable cause  the other the other contention of our opposition is that well and the district court relied on this the mere fact that the c h p was called to come to the c h p gave officer meyer the reasonable probable cause to believe that no permit existed however officer meyer was called to the c h p because there was a man harassing customers  that was that the communication he said he received yes the community was being harassed or something like that exactly that was the dispatch call it quote a preacher that is outside harassing customers waiting in line and therefore when the officer arrives he's approve where they come from i was just saying that nobody said that no one told officer meyer that he didn't have a permit and all he understood when he arrived was that there was a preacher outside harassing customers and the point is this is that he went up arresting him under six two point one b right by quitting the words harassing with the words obstructing and it was only later that law that the prosecutors decided no it's more like it should be an eight hundred sixty violation for failure to have a permit but on the day in question there was no discussion between the security guard or the dispatcher and  permit that's absolutely correct did he ask anybody if they had a permit once a got to the scene no one and it's all on video it's all audio recorded it is all there and the only thing that officer meyer comes and he questions the security guard is this is the man with the buck did you ask him to leave and then he comes and he mediately arrests mr makki now i would suggest that there may have been enough for officer meyer to detain mr makki to investigate and question do you have a phone that but he didn't do that instead he jumped immediately to the arrest and and when asked why he was being arrested officer meyer responded with you can't preach to a captive audience this is a captive audience you can't preach to captive audience he repeated this more than thirteen times over about fifteen minutes a minimum to go to trial because the record is completely lacking it actually all of the evidence actual evidence contradicts officer myers declaration the audio evidence the video evidence officer meyer suggests that there's there's interference with a business it's not open by the way which is required of the code it's not open to do that is it required under the code that would be open at the moment or is it enough that it's the kind of business that is normally open to the public for the got the people have wait in line hours before it opens in order to get it in when we say what actually your honor when i say a business it's actually a section six of two point one b addresses government offices i made a mistake in my brief and i apologize it will use the words open to the public yes open to the public and and in this instance it was closed however not only that if we take a look at the debt the audio video testimony you will see that there was no interference or obstruction or intimidation it can hardly be said that otherwise or free speech cause the united states constitution would seem to be meaningless further the testimony that the declan excuse me the depositions that were provided to the court from the security guard himself says over and over that there was no interference part of that that you're right beside one of you have to obstruct or something like that right yeah it's it's interference through obstruction or intimidation and i can hardly find it to in his in his police report which if you read you will see it is so fabricated with facts that are false in comparison to the actual video and the audio and the testimony from the other witnesses at the scene that you will see it's hardly credible and at a minimum this is an instance where the court should have found that there was a bitch there's a genuine issue of material fact let me ask you what about qualified immunity when the statute is never been interpreted by the california court not so much about the statutes because the import of the case is whether or not there's whether or not we can say that we're going to go through that the officer that the officer acted you know reasonably reasonable in other words he may have been it may not have had probable cause but given that the text of the statute he may have thought under the circumstances that he could be ok to arrest your honor my question would then be why did he have to lie in this police report to justify his arrest his police report is so full of fabrications when you compare the police report to what actually happened to the the facts in the officers mind at the time and in this instance the officers mind can only be used abolition based upon the credible evidence and it was well the question would be you know normally try to decide qualified immunity early in the case but sometimes you have discovery and sometimes you have trial and what you're i think what you're suggesting is that how can we  conclude that any reason objective the reasonable police officer would have acted in the way he did even if irrespective of the particular terms of these particular statutes and you the fact that you've got this dash cam and other testimony that totally contradict everything relevant that this officer has said in his police reports and in his declarations which are mostly conclusory entering anyway so you've got to have a trial thank your i'm qualified immunity as well as an probable cause and false arrest is that a fair summary of every your argument thank you your honor you said it so much better than me to give you one minute now to address the state law claims if you wish you don't have to yes your honor just briefly in and i apologize if i if i mean err on that issue in regard to having to be the president but that is clearly the law in california whether an offense has been committed in an officer's presence is determined whether the officer could testify to actual knowledge to every element of the claim and people versus scarcity and this is an instance where i think i could very i could k thank you very much we'll hear from the state may i may i have a minute yes i'll give you a minute for rebuttal i think  say you said the requirement that a misdemeanor must have occurred in the officers presence to justify warrantless arrest is not grounded in the fourth amendment and that site is known to have second seven seventy putting aside the issue of presence was there probable cause you agree with either of these two statute yes your honor there was first of all section six o two point one b which precludes the intentional interference of lawful business of  public agency or those attempting to carry on business there by those who refused to leave when asked mr mackey's conduct which officer meyer observed was intentionally interfering with a line of people waiting to go into the d that's that's would be a question for qualified immunity certainly because these people at the d m v had no choice but to stay there and listen to this yelling this judgment yes if they because they have to comply with work because he was interfering with the people attempting to carry on business of the d m v interfere yes yes and intimidation is also in the statutes it's intimidating and intimidating well it's intimidating for the people who can't expressing dismay and he personally was offended and felt forced into listening to it people are dismayed and offended by a lot of public speech and that's what the first amendment is all about yes your honor but the d m v is not a public forum so they have a right to a reasonable time place and manner restrictions this d m v had had trouble with this calvary chapel group in the past actually inciting people in the d m v line there had been argument back and forth customers had complained it was a minor knew all this he knew all of this from previous discussions with other c h p officers this group was very distinctive and memorable to both the d m v and the c h p they always videotaped events they always  video tapes doesn't the video and audio that was captured in the desk pretty much undercut almost everything that the officer said in his deposition in his declarations  there's no obstruction there's no intimidation well the first involved in the mr mackey's video didn't show everything you know everything that was happening at the scene there were people at the scene who did feel that mr makki was obstructive including the d m v patron who indicated he'd heard people complaining about it there actually was applause from the line when mr when officer my arrested this gentleman which wasn't captured on the video so the video didn't capture you know everything that happened of the d m v that day i don't know if either of you cited the supreme court case for the justice league of scott versus harrison two thousand and seven would sort of similar situations if we got a videotape pictures worth a thousand words evidence in the record captured the events is no indication it was dr altered in any way contradicts the version of the story told by the respondent adopted by the court of appeals in this was a case of excessive force in violation of the fourth amendment and i think it  was can't recall whether it's a summary a qualified immunity case or not but you know when you've got a video that captures a lot of what happened and again i'm not saying the me to be conclusions speculation and fiction and what facade meyer said and what he's filed well your honor mr mackey's video's only a small piece of the picture there were other available facts that were available to officer mark at the time he arrived at the scene for probable cause purposes officer had now alleged a reasonably trustworthy information sufficient to lead a person of reasonable caution to believe f correct what happened here mr mr makki was prosecuted criminally prosecuted for violating the permanent regulations section eight hundred sixty a the us supreme court has held under the removed you should assume there's no permit yes certainly and they want somebody removed for whatever reason there's a fair assumption that gives you probable cause that those people they want to move doesn't have don't have a yes the c h it this was this was how these things were done under under the actual code section eight hundred sixty eight the department issuing the permit is the c h p the calvary chapel preaching group was very familiar to the c h p officers  officer officer donovan walker testified that he had gone out there previously and went through the whole permit process with this group their leader was very defiant that's one of the reasons this group was so memorable the c h p officers a religious group who defies law enforcement he said he made it clear there was no way he was going to get a permit on the basis of the information that the officer or a reasonable officer had at the time he may rest in by later developed facts but these your honor these fact anywhere officer donovan walker says the minute a declaration attesting that he had a conversation with officer meyer and other officers prior to the date of the rest they before now no no it was it was as his attorney says now probable cause would still be present because that would be a reasonable mistaken identity the group was familiar dobson meyer you know he thought he recognized the guy from before  actually went around to other government buildings in the locality through the local courthouse the group was very familiar to the c h p i mean it was it was something they had discussed before like you know what do you do with these guys how many times are we going to give them a warning they had gone over permit requirements with them the group didn't want to get a permit to the d m v kept calling the d m v customs so let me ask you as you get there two other issues that i know which is  so you did raise qualified immunity i did the district court didn't get to because you for correct probable correct correct so what would what would be the basis for what we've done we've pretty much done and over or tried to incompetent qualified immunity must apply the us supreme court has set clear standards which is why should it apply here because it is not beyond debate that probable cause was not present it was not obvious to any reasonable peace officer that mr makki should be allowed to yell at d m v customers standing in line or to gather there for his own activities without a permit of the time he was arrested the district attorney agreed later charge mr makki for violating section eight sixty a a police expert testified in this case that the decision to arrest was reasonable as well you know qualified immunity is a is a strong defense you have to either be knowingly violating the law your honor mr tyler mr maggie's attorney has argued with the evidence we have presented they haven't presented evidence that refutes our evidence so the  is doesn't refute that the officers had discussed the permit violation ahead of time that the d m v had complained about this group in the past that the event facts available to the officer would show a reasonable officer that there was no permit and whether or not is they did have state law claims they did yeah and the under the state law you know presence is a absolute requirement well that's in the penal code section eight thirty six but it's not presence is not a requirement your honor for the immunity to apply the immunity claim doesn't i mean to do with the right i mean the state law fight immunity is has to do with federal constitutional so i think the question now is what about the common section eight four seven b one it immunizes peace officers from liability for false arrest if the arrest was lawful or the peace officer at the time of arrest had reasonable cause to believe the arrest was did see the guy preaching in front of the line and he did have facts that show him available to him that should not permit under california law the cases o'toole vs the period court one forty callup forth for eight the question is whether a reasonable person would have a strong suspicion of the arrestees guilt so section eight four seven and cases interpretating at this immunity do not require the officer to observe every element of every of he charged you know personally or in his you know with his own senses he did confirm with the security guard that the gentleman had been asked to leave when he arrived and he did see mr makki preaching to the line  declaration and the only time he had been there previously at the d m v was on this incident in december twenty four two thousand and nine and had not been there since from two thousand and nine until this data february second at the time of the arrest in two thousand and eleven it there is in the state argues that there is more than one more than one incident here well certainly there is no evidence of any incident after december nine up until the date of the arrest and there's no evidence that mr makki was a regular of this group there's no even definition of what this group is no evidence that mr makki had a reputation of any kind and there was testimony about a police expert yes there was an expert that provided a declaration of behalf of the state we had a declaration on behalf of our client