the other factors the back of hand working worrying where the other two factors weighed heavily in favor of them unity nevertheless saying because the first factor weighed against immunity we're not going to  factor it says this is very heavily in favor of nine unity because the second and third factors and says these are more checkered there's there's points in facts in both directions that that support and don't support opportunity so while we alternately decide that they weigh in favor of immunity there was slate factors in favor for me don't outweigh the strong factor in favor of so they came to the conclusion that this court should come to today there are no intervening facts nothing has changed maybe the funding the amount of funding goes one way or the other depending on the annual budget but none of the factors they still determined to after envisioning analysis that it's checkered their error the second and third factors their points in favor of community and points against it and while the points in favor of them unity may outweigh the points against immunity for those factors it was only slight it was only a little bit in favor of community and those two factors going a little bit in favor of immunity did not outweigh the first factor which it found first factor is a tie breaker in her made knowledge is that that these factors must be weighed they can't just be counted because otherwise there would be no need for a tie breaker there will always be a two to one were three  rationale behind the weapon amendment protection of sodomy of states that the prevention of federal court judgments that must be paid out of the state treasury should remain our prime guide and that's right it determines that it's the tie breaker and in these cases  of any of the three statutes that criminal statutes that the parents were charged with it has no bearing on the trespassing issue it has no bearing on the obstruction issue because there is no physical obstruct if this would be no different than any coming up to anyone who's making a rotten royce on a train platform and just telling them to stop and someone just questioning why which is a fundamental point of our twenty more years of experience with new jersey transit so its status in the state has become trigger solidified as an agency it's finding its state funding has continued throughout these additional the new jersey courts have found consistently that new jersey transit is an agency and so that kind of flushes out you know continues to flush out the law and that the substantial funding has continued we noted in our brief that for the year two thousand and eight to two thousand and fourteen new jersey transit either the one point four billion dollar deficit it's designed to rely on state funding is this part of the so we just record supreme court realized that circuits had been giving the funding factor not only predominantly but this kind of weight and that that was wrong and so what happened in future cases because the funding factor was found to weigh so strongly noted that three of the seven board members are governor appointees but in fact all seven are the other four are within the advice and consent of the senate but the governor appoints them an addition the governor has  supreme court we're going to quote the supreme court from its has decision that says where an agency is so structured that as a practical matter if the agency is to survive a judgment must extend itself against the state treasuries commonsense and the rationale of the eleventh commandment require the sovereign immunity attaches to the agency and that is exactly the situation with new jersey transit and so i think based on the record and the law as it is there is sufficient evidence for this court to reconsider all three factors if the court feels bound by the findings and phytic at least two out of the three factors still weigh in favor of an immunity and even if they're weak even if they're weak that's like montclair state university the court there found factors pointing both ways the autonomy and the status under state law factor and that's exactly the situation here as fit to count and so even under those circumstances s backpacks they're refusing to leave their objecting to the refuting the officer statement that they can't be preaching without a permit they can be preaching on the platform there in their belief that yes we can we don't need a permit we can stay and preach they trying to videotape or refuse our record refuse initially to put their phones away they refused to provide a valid id so any one of those political candidates  candidates did a critical groups did apply for and receive permits and so i am just wondering step back to the qualified immunity probable cause just yesterday this court issued addressing whether an officer was entitled to qualified immunity when he arrested a right for refusing to produce her husband's id and her husband had been taken into custody she refused to responsible for this payment therefore we decide it havea lot of them and then should apply here they don't do that they go in depth into the various other factors they consider a descent that also goes in depth into those other factors this new refined wall and they determined that seventy and they still do not apply that's what the court needs to do in this case look at that fitch decision as the starting point see if anything's changed it outweighs the two checkered factors that were a stately in favor for me the other two things i'd like to just create across the country record there was talk about refusing to reach the the testimony was that they were never asked to leave they were just informed that they were operating without a permit and they need to get a permit the question of why they were never asked to leave and then refused to leave which