cynthia anderson barker and i represent the trees dickson who is the plaintiff and the appellant the tragic events of nine eleven do not abrogate the fourth amendment what that means is that a woman on the beach at night and alone even though large is not fair game for a crest and she still keeps her fourth amendment right against unreasonable searches even if she is black and declines consent to be searched so in this instance a pat down search by a male police officer taking his hands and placing them along the contours of her body to feel for weapons subjected her a middle class african american woman taking a break at the beach after a long day at work and a long commute home to a feeling of great intrusion on her person just because you don't have a lot of training i think we kind of need to jump to the chase ok i did have a jury trial and we're no we're dealing with a jury trial  right before and that was denied and you went to trial did did then defendants bring them did they go for qualified immunity before the trial or have in the somehow in the proceedings the judge to furnish this talk after the trial their one point and highlight that particular one point the issue is were the instructions given correct because it isn't necessarily a correct statement of the law that under these circumstances that failure to  concerns means there was no probable cause because that wasn't all that there was here throughout the other the other big point and as trial counsel mentioned throughout the trial twelve times was the post nine eleven environment and that was used as one of the factors in the totality of the circumstances to justify the search of an arnold or a number of factors that were mentioned i mean we got attitude and demeanor correct remote location correct t do the remainder of those give the officers probable cause in you seem to be struggling against the fact that you're we would be required to hold that there is only one conclusion that can be reached and that's in your client's favor to grant a fifty wouldn't allow reasonable suspicion to search or even together there's no case law are supporting those factors allowing for search alone large at night on a be i want to know if there's anything here that affects the greatest decor delaine simply lists that as one reason in that case that they could not search the per cent but the other issue in that case was the young man was arguing with the police officer too and they still found that there was no reasonable suspicion to search and so so i just think the remaining factors even if you take out the two that we request a jury instructions on would not even rise to that level but the jury needed to hear those instructions because we believe the nine eleven argument was very inflammatory it was very prejudicial to us and it's not a factor oppose you there has to down on the ground she cooperate she walks over the lights are on her two different lights from the police officers and then they had lights and then when she start they start writing her a ticket she begins to get  and she says why are you writing me a ticket i pay taxes to me i have your name and badge number the ticket writing stops and they search for and so we believe again you know she's talking to them she has that first amendment right but their concern and what they raised was her demeanor they felt threatened they were afraid we don't believe that because she was a woman alone on the beach using at the movie do you  eleven argue meant and what was argued was we're in a heightened state of alert we're at a port she's sitting on a lifeguard tower or somehow that type and the concern of the officers that she could perhaps be an al qaeda operative i don't know african american woman and i don't think so but that was really played upon at the trial a lot twelve times mentioned during the course of the trial and again her questioning of the thirty the refusal of consent to be searched we think that played into the jury's concern we'd like to take those elements out and get our we trial and see what happens because those actual fact was the officer involved requested a search because he had concerns about the safety of the seats for his partner he had already made his decision to search or she then said no i don't want you to search me he said ma'am we're going to search you for  qualified immunity after you probably defense verdict it's sort of mean less that the point is i guess if we did not affirm the verdict then the court needs to make a determination of qualified immunity or what it i frankly am somewhat have some difficulty dealing with it myself i am here to the case late in the game that was not proper a summary judgment that would have been the appropriate time to bring a motion based on qualified immunity it was not however at the time of trial the defendants preserve their right to are you qualified immunity by way of a rule fifty motion the judge did something unusual in this case though the district court judge says we will hear rule fifty a motion but i do believe it's appropriate to raise that at this point and i and i surmise that the court would have to consider the factors and decide whether or not these officers over the reasonable officer under similar circumstances would believe what they were doing was a violation of the constitution and to you that they would not if you affirm the jury verdict you have to get to that issue you know cancel it if you accept the the standard is the we look at the combination of factors that were known to the police officers what do i reasonable police officer or does it taint the entire process does not change the entire process your honor the court's approach should be to look at each factor that a reasonable police officer would consider and give it the weight that it requires whatever they say isn't evidence the evidence is what you hear from the witness stand in the law is what i tell you don't want to be correct in the jury heard the evidence concerning whether or not her refusal to be searched was actually one of the motivating factors of the police officers we argued that it was not the plaintiffs argued that it wasn't the jury me that the solution but the instruction was broad enough to cover that factual dispute instruction and i polish as writers i don't recall the exact instructions this trial took place almost two years and i just don't recall the exact instruction but it was a general instruction that talked about whether the search was reasonable in light of the totality of the circumstances we don't have further questions from us you want to make further comment i just want to make two other points very quickly your honor i just i may have said this and i apologize if i'm repeating myself but again i think as your honor has already correctly identified appellate burden in this case we prevail the trial so now they must show that there is no evidence from which a reasonable trier of fact can conclude that these officers felt in this dickson was potentially armed and dangerous actions were reasonable right that's i mean what are the elements that that's one of the elements right that they had a reasonable suspicion that the suspect that they were dealing with may be armed and potentially dangerous and that's based on an objective standard and that all that information by way of jury instruction was provided to the jury and that's the conclusion they reached the question now is is there substantial substantial evidence to support that jury verdict considering the evidence just briefly in the record at the trial city said the following that they can draw an inference that a person is armed from a person's refusal to consent to being searched and that's in the record and then also a person asking for a name and badge number could be considered one of the facts and circumstances that contribute to a reasonable belief that the person is armed we believe that there should have been a directed