legally identified with a party such as agents or principals and see anyone who works an active concert or participation with a party to sister party to violate the injunction judge hand in  not bound by the injunction number one they're not part number two payments came to be seem to sidewalk council people are twenty years after the events giving rise to their car injunction he was unaware of the injunction havens and some other parties who are supposedly junctions so the fact that he does the trainings at is situation that's one binary chose well i have an analogy that could be helpful here i intend to go politics and he says want to vote for candidate x and we're going vote does that mean that that's coordination of that to be sequential lower courts that mean i'm voting for my neighbor of course not the lower court announces it's completely injunction what would cross the line some kind of new evidence of an agreement that we're not acting on our own we're not nix you know engaging in our own independent person mental activity but we're just there because we've been said that will sixty five is about the actuality of active concert and not the motivations for it are you talking about motivations when you talk about do it for somebody else no motivation we relatively straightforward and the state seems to be arguing that there is a logical analysis to be followed to determine whether mr havens violated the injunction  the st premise is that mary just or someone else bound by the injunction is a principle violated at step number one and step number two is that your client mr haven aided and abetted her so let me just start number one and again this is their argument i think so let me take step number one do you agree or disagree with the proposition that  there's been a showing that just violated the injunction and i i understand there's two different procedural postures one is for the purpose of taking the well pled allegations of your complaint and the nd would be based on the expanded record that the court was considering in connection with the preliminary injunction so what's your answer to that about whether in your view there is a should been a showing in either situation that just violated  on the allegations in the complaint there's been no adequate allegation your complaint can't be read as alleging that she violated the injunction by the sickness aiding and abetting your client i mean let me let me turn to a separate question if i could and it's about what is the muni in concert an active concert with which in real sixty five and also distinct legal concept that presupposes a principle and an ending in a in an age or in a better who is not the principle and how much would it also include what we consider to be conspiracy where people are effectively becoming mutual agents for one another is it your view that under alamein active concert is limited to aiding and abetting which presupposes a principle or could there also be a situation where there is it could be independent conduct biased but it depended on our well hang on a nd because i think now we're crossing two concepts right when you say that it's independent conduct by another actor now you're just supposing yourself out of a conspiracy relationship a conspiracy relationship is where two parties agree on a mutual to pursue a mutual objective right so again hypothetically let's assume that we're in in a conspiracy world so where they have agreed on a common objective and maybe one person couldn't be liable as a principle but that they jointly undertake activity where in combination they're achieving whatever the goal is where here it's stepping over  the line are you saying that a conspiracy relationship which would not rise to the level of aiding abetting would nevertheless be in violation of the injunction i wouldn't say that that's not what judge han not well if by conspiracy you mean you know any kind of interaction between the parties where there's a general mutual goal of pro life speech but i would disagree with know i'm not talking about pro life speech i'm talking about an agreement where one person will will undertake an object and you know usually it's somebody's going to go in to rob the bank right but here it's not here it you know someone's going to cross the yellow line right  and we're going to agree with each other that one of us is going to go across the yellow line i can't do it so you do it if there were a conspiratorial relationship and i'm not saying there is my question is if that did not qualify as i don't i think active controvert like somebody yes are go ahead i mean nd think about what it mean to says it's a working with someone else concert means i'm working with somebody are participating with to accomplish something exercising our own independent rights and there's no evidence in the complaint that the sentence really when we think about eating in a betting you might somebody might be an aider and abettor because they know about the overall scheme and they just participate in one small piece protest access to the bathroom or something like we have on this record does that count as active concert and participation because we may think of it as some level of aiding and abetting right i would suggest to not because  going to go do sidewalk counseling and they're going to do it in the buffer zone which she thinks they're allowed to do and she thinks that's great and lets them use the bathroom on the way to go do that or while they're doing it or whatever it is  a facebook post by havens promoting a training and mailing from rescue rochester urging its members to join jim havens and so on why why do we lose not cancel haven own independent action i would say he's acting for himself and not for the nonono but if yes for himself and for them you know you can't accept my hypothetical if you can't do both so if i do something and for you i can't do both of those things well right because if i do something independently the difference between that   about criminal law the definition of aiding and abetting and i just want to be clear this court is never held that the criminal law definition of aiding and abetting defines the scope of after after contract to rule sixty five dollars true that criminal constable plies determine whether or not a non party committed criminal contempt and that makes that criminal contempt is designed to punish that's not the issue here and look sixty five by contrast is meant to enable courts to effectuate their orders and of course you could recognize as opposing counsel just said that the nature of what you do might be to act on someone's behalf and the motivations for doing it would be made if you take pity on them they do with their goals they do your bride to do it it could be lots of motivations for it but could it be that the nature of the saying is as he said that you have to do it to assist the party that is enjoying it well yes your honor and it's clear that that the assistance to violate the injunction has been provided  prince for purposes the preliminary injunction right i mean i don't read the complaint it's saying she hosted it i read it as saying that focus hosted it and that she quote participates in it so the that she hosted it is quite a strong version and that's an inference that would be drawn in your favor right but one could easily draw an inference that one looks only at the four corners of the complaint that i don't know marriage and she's someone who participates in focus it's not in the complaint you believe that it's not it's not disputed and there are also not disputed that it can be considered for purposes will be sexed up my response is it's twofold i think it's the purposes of the complaint you look at the complaint allegations that and issue a noticeable fact as well as you know it's going that how do we judicially notice facebook post is that something that the taking of a website and that's the web site that that's not a party but just just to be clear on page nineteen of their reply brief they refer to you know in hosting federal counseling training sessions but  also mary jo's own blog post and this is in the record of page one o three where she says jim havens asked me if i could if you could use focus to post the sagamore training session i said ye protests police use of force and racial disparities and there are many peaceful protesters but also some incidents of violence so let's say hypothetically there's somebody who participate in such a protest because of  violence or threat of violence there's an injunction that that person can approach a particular target of a protest whether it's a person or a location or something now are you telling me that if doing so word the protests esther's continue to associate with that person in some fashion he like they have meetings at his apartment or or he lets them use the restroom on the way to a protest or maybe even shows up at a future protest and they're protesting shoulder to shoulder with that guy who was subject to the injunction that that would be a basis for saying that the whole truth test was illegal because there was somebody associated with the group who was in joined from that location to  was aiding and abetting you need to put there there should be there need to be a violation of the let's let's say it's the same injunction that we have here so he can't encourage other people to do it so let's say he posts the meeting at his apartment before the protesters go on to do their protest or he can't go within fifteen feet of the target of the protest so let's say he actually violates the protest by showing up another people are protesting shoulder to shoulder with him just like the fact we're  let's turn to the example of hosting a meeting or order or training session where where what is being hosted is a training session you know engaging in conduct that will require entering the buffer zone you know that's not just hosting any meeting and talking to non parties that's sort of enabling a training session on how to engage and kind of what the what what makes a difference if you hosted the meeting if he did violations count and that's because for purpose of a contempt enough because the purpose of civil contempt is to ensure compliance not not punished but but yes i'm told that i'm somewhat or hosting the meeting is active concert and participation and you're telling me we're aiding and abetting and you're telling me that it would be because the nature of the thing is to violate the injunction but of course the nature of protesting is not necessarily to go within fifteen feet is a buffer zone but even if it were if the person were just supporting people who were allowed to do that by hosting a meeting or a planning session in advance that really render all the conduct of the peaceful protesters unlawful  know your honor and so for st it does not and it does render what the party is doing posting the training session that does run you know that that is providing aid in violation of the injunction and you know the person leading those training sessions you know if your haven and the person leading the demonstrations were then people enter the the buffer zone that is sort of that is aiding and abetting the underlying violation because pagans was the leader he was the one directing teaching people you know here's how you engage in close contact codes contact with patients you know here you know if you just be close personal conversation with them as they are entering the clinic and he never told them to watch out for the that that person can't help the peaceful protesters in any way i'm not sure that that's right but i get that argument but then you're saying even the peaceful protesters if they plan to go within fifteen feet because they dispersant hosting the meeting himself to within fifteen feet but they all plan to because that's what they want to do because they're peaceful protesters and they're allowed to do it right i don't think that you're  saying because they know that they went to a meeting at somebodies parents to organize and the person who owns the house is subject to an injunction they and their own they know about the injunction that they  simply accept their aid so you're telling me that in my scenario if there's somebody who in regions in one of the racial justice protests who've been engaged in violence or the such an injunction that person must completely dissociate from everybody involved in the proces and not provide them any either support or otherwise it would render all the process of lawful i don't think the coat i don't think that that that that kind of holding needs to that that this this case sort of goes as far as that i think it's clear that at the very least the person conducting hope you know the next of the parties hosting this training session and then a nonparty is teaching people what specifically to do at that at th bench he says he has the same message that they did and therefore should be bound by the same restrictions as a point in his opinion where he says they share the same common goal of deterring abortion minded women from seeking services at least we would you agree that just because somebody has the same viewpoint as someone subject to the injunction and they can't therefore be bound by the injunction right there needs to be some kind of conduct in which they engage that makes them th people subject to the injunction run absolutely absolutely this is this is about conduct and you know that goes this is the objective inquiry this is about what you did and not necessarily or not at all why you did it and just eleven point  i believe it was mentioned that that to show active concert has to be on behalf of the name man party i don't think that that's right i think it's important to look at real fifty five and you know it covers parties officers and agents and anyone who's an active concert be on behalf of you know that that someone who's an agent and active concert sort of sweeps more broadly and there does not need to be an agency that doesn't need to be contact x on behalf of a party or for a party it's just again what you did  say in response to my question earlier you said that they have to be assisting the party that's correct so there is you think there might be a level below doing something on behalf of someone assisting them but you think at a minimum there needs to be showing that the non party is assisting the party for a purpose of aiding and abetting theory of active concert participation yes that's because mr brock matter as i understand it on behalf getting a lot of your argument seems to be premised on the training at focus but would you agree that hypothetically if the training consisted of the following everyone go hold up placards and stand behind the yellow line don't cross the yellow line that would not support a suggestion of whatever under one hundred there is active concert that would not support a theory that there had somehow been aiding and abetting or active concert to violate the injunction if that were assuming take my hypothetical that training consisted of nobody crossed the yellow line and then yes if it just knew that and just was not you know aiding anyone to engage in conduct that would violate the injunction that in abetting theory would not apply so can you can you point to what there is in the in junk i'm sorry in the complaint for purposes of twelve the six or in the more expanded record for purposes the preliminary injunction that demonstrates what the content of this training  clarify what my answer that it's to engage in sidewalk counseling affectively they complain or just having to converse from fifteen feet away you know being outside the buffer zone while the person in the buffer zone is counterproductive to the facebook posts which seems questionable to me let's all it says imperative forty three is that there was a facebook post promoting training right it doesn't say promoting training for sidewalk counseling no no your honor i think also if you look at the page before and the complaint if undersell it's what haven's at the time he conducted the trainings this is he did not think the injunction could apply to anyone besides those named in the injunction so so and then i think it's the only reason for protection is that when he conducted a training session he would teach people how to engage and said look counselling can i just can i just clarify in joined parties he was allowed to go into the buffer zone you're just saying once he stopped having trainings at home and started having trainings at the facility that necessarily your honor i think it's sort of actual notice of the injunction i think at the very least or you know i hear there's a direct receipt he received it he read if perms so so i'm not i don't take on what constitutes actual notice but most the question is whether it applies to him why does it matter if he has no notice of it i mean if he were one of the parties to the original injunction but for some reason never learned about it you still thing applies to he had done the training for a different location there would not be he could still go within the buffer zone that's a different case but i also want to point out that this injunction accusing the complaint also talks about joe spent another named party rescue rochester publicising and promoting plaintive demonstrations outside the clinic demonstrations were plaintiffs into being and to consider participation so in my hypothetical if the enjoyment person doesn't hold the meetings with the peaceful protesters but all he does is do a lot of posts on social media that say i really support these guys and what they're doing with that renders the protest a lawful right and i think if it's not it's not necessarily the protest but but it's about the specific conduct and and just to be clear haven germany can i ask you i think you did not address his case the levin case in your brief and i was hoping you might which i think stands for the proposition that nonparty does not violate an even if the party bound by the injunction with violin the injunction in other words having someone eight in the back a violation of the injunction does not mean that the person receiving that assistance thereby becomes a hater in the better and the eight are in  enter the buffer zone and i think if you look at letting you know it define sort of what it is betting for purpose it will contend include and it says the party subject to the mandate committed content and another party assisted this is going the other way which is saying in other words the person playing was participating in in concert with and trying to help for whatever reason anti abortion movement move very fluidly between different associations with the same basic goals and leadership this is what we're dealing with here now we have a recognized group of individuals who are not random individuals or innocent rd parties they are principles and anti abortion groups they are the leaders no i'm sorry so then then what you're saying is that because the groups are fluids the injunction applies to anybody who's part of the pro life community i think the right way and yes i think the injunction which has been upheld by this or was only do you disagree so you disagree with what the a g s attorney just said which is that you can't actually enjoying somebody because they share a common goal with the joint parties you say what you can't because individuals are fluid well no what i what i'm saying is that antiabortion syndicate for lack of a better term mr ash i'm looking at this complaint and i thought that the argument was that in the complaint itself there are allegations for whatever subject to the injunction so why would you need to go further than that i don't need to go further than that yana but i don't want to divorce the fact that we've pointed to in cities brief from from the context here these are not random part we said that with respect to michael warren there wasn't enough evidence that he had engaged in unlawful conduct and therefore the injunction could not lawfully be applied to him but obviously he was in association with everybody else who was subject to the injunction so how do we rejected the idea that you can just apply the injunction in a fluid fashion to anybody who sort of works together for pro life goals or in these of judge lamers decision is that there's a very sort of fluid nature to to the organizations that are subject to this injunction and here's what i mean there's a there's there's a tactic here that's being employed by mr havens which is this in your face very aggressive approach of women trying to get care that is the conduct that that the are to a carer injunction is directed to if mr havens who was on the sidewalk shoulder to shoulder doing this type of activity with people who are named in the injunction who is getting support and training facility from people made in the injunction and is being marketed advertised by people named in the injunction if bad doesn't qualify a that i think we all agree that there have been peaceful protesters but also incidents of violence and so i'm saying let's say somebody who had engaged in violence or threatened violence was subject to an injunction and then that person just continued to associate with the people with the peaceful support to the peaceful protesters and then they go forth and engage in the conduct from which even joins that would render the protest unlawful well i'm a little bit confused by that but a questioning are just because you saying peaceful protesters here what what haven's have declared he wants to do is the very opposite of a peaceful protest he says he wants to call my mom so i say i see so what you're saying is that side well counseling is just inherently not peaceful and therefore can be enjoyed there no i'm saying that there is a buffer zone specifically because of the distinct facts that created the injunction that we're talking those people are on actual notice of the injunction better yet to receive a copy of the injunction i would argue that that with that is a particularly damning fact that would obviously help my argument but i don't find much case law that goes beyond the court making analysis of an entire corpus the facts and looking at what the actual result of the conduct was knowledge is important for contempt proceedings  right about whether the notion applies to mr heenan i understand that but it seems like you are saying that and this is different from what the attorney general is saying you're saying that anybody who wants to engage inside what counseling even if they didn't know the parties who were subject to the ark are injunction they would be subject to it because they want to engage in the conduct that judge our congress found offensive and wanted to join is that been never met mary jo's she would still be subject to the injunction well i don't i don't i i don't want to go down that road because i think the fact that's what you it's not it's not in a vacuum the court would look at a body of facts to support that's fine but one of the one of the critical factors that the court would look to what is what is the actual result of the kind of the participation encourage men and enroll the operation rescue on the course that encouragement may suffice to support a finding of content so so here would the question is whether or not this injunction player i'm sorry i'm sorry so you're saying that the a car injunction is designed to prevent sidewalk counseling full stop in a matter of who's doing is no no no no no no no sidewalk counseling that invades not parking lot or in their face in the threshold of a clinic and in a very harassing and aggressive manner that conduct which by the way which is by the way that's not us that yes yes yes or no this is just learning look i think we're getting a little confused here but i take it that what you're saying is that that conduct is the subject of the judicial decreed namely the injunction right absolutely and so the only question before us is that constitutes active concert of participation under rule that's the very narrow focus of our inquiry is that correct i think so you're right and i would just add that i think it's the on the conduct that i think is the focus of the permanent junction but i think the fact that these individuals are part of the same universe the same universe of principle the same network and i think we're very closely to each other is a  on the nature of the vote in the connection with the judicial three sixty five that is whether the allegations of the complaint along with all of the various techniques as i understand  that's what it does what it should be but i'm sorry that it would be right but would you agree that the district judge did seem to be saying that because mr havens and his group have the same goals and the same message as the people who are such an