police are not entitled to qualified immunity because it is clearly established that police cannot arrest someone for engaging in protected political speech or simply asking a sarcastic question is whether whether speech is protected not protected because it's a true threat a question of fact or more and i will say i have i read the j m pretty carefully and it is very ambiguous on this question so i wondered if you have thought about it and looked to look elsewhere for your honor it seems to be in some way that this court has made clear the facts and the context of the situation in which an alleged threat is made is very important to determining whether or not something is in fact a true threat however this court has and it president allowed lower court to make that determination as a matter of law without sending the case to a jury to make the determination as to whether it's a true threat on the fact not it's seems to me that's right and the d j am put the appellant arguments as there's a disputed question of fact and then recited that the district court concluded which is a a buzzword for saying it was an issue of war so i and i think usually the supreme court which tends to make decisions without addressing this question seems to take issues like protected speech as ones of law so if that and of course that's significant because it means that both the district court and now this court can look at the evidence of record and conclude whether  expression of an intent to cause harm or injury to another who is the recipient and in this how do we how do we analyze that particularly in light of the statement itself but also the fact that it's on a social media  post your honor i think that that's a very important question here particularly because the this court views whether or not a true threat is determined from the perspective of a reasonable recipient and the reaction important to note that in this case although this post was disseminated beyond the initial few hours that it was the written originally posted for none of those individuals who liked or commented on that post felt that this mr office comic react as well as the police officer's wife saw to judge logan's question the superintendent did contact police power he did not call nine one one nor did he close schools he had a passing thought of potentially closing schools the following day however he did not act on that moreover the superintendent in this case is not necessarily a reasonable person from an objective standpoint as someone in his position would have a particular sensitivity to a remark like that to your question judge the police officer's wife received the screen shot at a text message from her cousin and the only piece of information in that text message as mr ross noted in his deposition he had seen some of the comments that were being added to the screenshot on facebook that indicated that people were reacting to his distasteful political remark in a way of calling him out for not agreeing with their particular political views on gun control  unclear because there was no additional context to screen shot that was sent off their medicines wife whether or not her cousin was sending it because pointing out look at this guy making the ridiculous remark or whether she was intending to send it to his wife to that and communicate to her husband because she was concerned about it even she did not pick up the phone and call nine one one and i that's particularly important here to indicate that even her reaction was not one of emergency and moreover with regard to the fourth amendment issue in this case probable cause after medlin never contacted mrs myth to determine why she had sent the post to his wife and to determine what her reaction was to this post rather the police officers who like the superintendent would have a particular sensitivity to a comment like  difficulty targeted at cali now the language in the post stating that assault weapons are needed to prevent against government atrocity is his comment although not necessarily most articulately made is responding to that and highlighting that these weapons these automatic weapons are primarily used in their shooting and his concern about those weapons being legal and has to do with protecting protecting schools children just the on the first amendment claim i couldn't help but wonder what damages are being sought i don't even know if that if that's in the record but it strikes me  mean more of the pause without the damages here with the first amendment though just to be clear would be the risk of chilling speech online which has become a has become the modern town  effectively discourage people and chill people from engaging in those robust discussions on lines which is something that the first amendment is designed to protect with regard to the fourth amendment claim to be here what and arresting mr off was a total of an hour and forty five minutes officers took the time to determine where mr ross worked and they themselves in their deposition indicated that they made the decision to arrest mr off before even talking to him to determine whether or not he but they got they got the explanation before the arrest from him right it and he admitted that it was his post r response to the post and then said it was but it was a joke or you know the record and he may have had time to get those few words out before he was actually placed under arrest but when verified that he  books the police officer did nothing other than arrest mr and he here mr off remark about the post to determine that he in fact made it there was  they did not bother to talk to him before arresting him they would they didn't interview him they essentially walked in to his place of work asked to talk to him placed him in handcuffs put him in the police car and told him he was on  he had an opportunity to to really fully explain what was going on there is no there was no care there was no questioning the police officers did not stop and ask the questions before they placed him under arrest and the information that they had from mr austin was volunteered by him to avoid being taken to the police station the last point that i want to make is that these rights are clearly established and police are not entitled to qualified immunity kindergarten with respect to a meme posted showing several type of guns long guns including an a k forty seven assault rifle the district court found that these individual defendants did have at least arguable probable cause for arresting  based on this on suspicion that he was violating misery statute regarding terrorist threats the plaintiff's argument proceeds really on two i think flawed premises one that the officers were required to  do more of a wholesale investigation slash miniature trial before arresting him and also that the ultimate determination of whether or not the speech constituted a true threat or not is determined of  nor a key aspect of qualified immunity and that is that these officers had to act based on what information was available to them at that time and in what would a reasonable officer do under those circumstances did they violated a clearly established constitutional right in taking the action they did how would you define the clearly established right here i think that if you look to the twenty seventeen supreme court case white versus policy you pauley the court said you cannot define a clearly established right generally with high levels of generality i think to say that someone can engage in free speech without retaliation which is not truly retaliations as if there's no animists here but it is a general statement that we all have first human right to free speech well we know that's true so how do we define it here i think here there isn't a clearly established right that's been asserted i think it's the it's  he clearly established i think that ought to rest somebody for engaging in political speech sure will some of the cases cited in the briefing citing to watch state very clearly that just because speech has political context doesn't mean that it's protected if it amounts to a threat so we have you know the fact that so the key seems to be doesn't amount to a threat right only in the sense of well for my officers it what matters is whether or not they can look at this speech and reasonable officers reasonable cop it officers could differ on the question of whether or not a cost or threat we don't even have to actually determine that it was a threat for the district court decision  rightly entered i think they had to have arguable probable cause in the end we had that already will probably cause and i think very clearly the only way that the district court could have possibly erred here is to find their officers either intentionally or with absolutely incompetent as the conduct of this arrest i don't think there's anything in the record that even remotely indicates that the analysis of whether or not it's a threat and looks to me like four out of the five factors identified and then we cut against you what do you think of that do you think that's the appropriate way to measure it in a you know us judge kelly was alluding to most social factors are the appropriate factors for a situation like this where the posting is something that's going to be available to a broad array of people all the the appellant is treated the dinwiddie factors almost dinwiddie in fact the specific verbs in that cases we have recognized several factors there was nothing exclusive about that list in fact in which he went to great lengths to express this is not an exclusive list in the presence and to another now that was clearly established law right sure and so ok so that if if if that if this posting doesn't it doesn't satisfy posted that it was a joke while i now if if if that if a reasonable police officer with any kind of experience training and intelligence would have would have not seen this as a through true threat as defined in doe then clearly established law says it was they did not have arguable probable cause right now i think i mean that's that to me is the is the case not that there is no established law while political threats are so in all political context matters but i mean i think the question is only if no officer of reasonable competence could look at that interpret as a threat under the pillow no snow if i mean it's an object of standard of a reasonable officer right and if the reason that that doesn't that doesn't mean  hundred out of a hundred reasonable i mean you factor that one reasonable officer might disagree with the ninety nine who thought this was obviously something less than terroristic i think under reasonable officer could make that decision these officers did for genuine reasons or political reasons i mean the prosecutor might have been running for office instead that go get that guy well i think based expression of an intent to harm or cause injury to another as this circuit is held interpreted by the recipient edge of the standard yes from dol correct what's not that's the standard what do you correcting me on the standard with the comment but the fact that it had been communicated to third parties who then saw fit to contact the police have of the officers wife i don't think that the matter is there that is this is it in the record whether they knew what the school superintendents reaction or was that i don't believe that they did and i that was later in the day that was later in the day i had was the officer's wife and i agree and i don't think that they needed anything more than that they had the context is everything in these cases you had the context was this was based on have an oblate they didn't have any context surely that they almost in a response and a wife getting upset when a neighbor cousin told her about it the this statement was made in the context of a public mean that was posted with different kinds of guns including assault rifles and the expressed question which one of these do i need to shoot mckenna guard that was communicated to third party that third party contacted the police in missouri statute on making a terrorist that requires only that  wife's cousin or whatever sure not that not the person that received it i don't think that that matters what because the wife's cousin did receive it because this post was this was publicly posted online i think that to say that page kimball the person who posted the means receipt of this is determined of a question whether it was received by third parties is incorrect i think it was received by third parties as evidenced by the fact that they received the and then forwarded it to the police and so whether or not page him will soffits a call mind of them or others not the president tweet to the north korea's dictator that he's got a bigger button it was a terrorist could be could could be arguable probable cause of a terroristic threat causing a school to shut down or evacuation of a building things of that nature if you look at that from the standpoint of a reasonable person could look at a gun post and a question of which one of these i need to blow up a kindergarten and the fact that that had been  you know it's not c n n reading the president's tweets well i if anything i think that you know one of the things that the appellant talked about was the what they thought was the particular sensitivity of the superintendent i think if anything the officers regardless of whether they had a particular sensitivity certainly had a duty to act on something that they perceived as possibly creating in in reasonable terms or where they are not if it was an unreasonable perception well sure but i'm i'm saying it's a reasonable perception and i mean the footnote indo specifically says for no for we find it untenable in the wake of columbine in jonesboro that any reasonable school official who came into possession of james letter would have taken would not have taken some action and i think the same thing holds true here any officer who sees on facebook a posting of long rifles and the question of should we you know which one of these do i need to shoot up again darn in the wake of what's even happened since then he's putting the sandy hook massacre which is certainly on the pellets min that no reasonable officer would look at that and dismiss it i think that different that was then a reasonable officer to dismiss it versus a reasonable officer to arrest i think of a reasonable officer looks at that statement and believes reasonably that that is implying a threat which under the missouri statute an implied threat constitutes a threat then he has probably cause and that is are a statute to arrest that individual and if and if not if he ends up being mistaken because it turns out in hindsight or later on that mr ross intended this to be you know some satirical comment that was a particularly funding the fourth amendment requires a reasonable man or the rest also i don't think there's anything on result about the manner of the rest here about going into his place of employment and in flagrantly cuffing him and taking them to a police car and then just saying well we're already doing is going down the interview i think in light of the fact that there was probable cause to him the way he was arrested was justified i don't think anything about the in your case by supporting that the manner of arrest doesn't matter i'm not aware of that being an issue in the cation or that he's claiming that the manner of his arrest is in any way offensive to his constitutional rights beyond the fact that he was arrested for having made this threatening comment given what has been claimed here and what has been placed before the court of what the district court ultimately ruled on these officers did have reasonable probable cause to make this arrest there was a misery statue that set forth a very simple elements on what constitute a terrorist threat you had this threat no investigation no further investigation was necessary to ascertain what threat what the nature of the speech was here at issue because it was memorialized in this text that was then forward to the police department so on like some of the cases cited including cool for the proposition that further investigation should been made there was no clearly exculpatory evidence here there was no intent to harm the recipient of the post r saw no reasonable evidence of an intent to harm the person that posted all the guns in the first place oh no i don't think there was any i do not so so they they were that i mean the there has to be and there has to be a or a reasonable perception of an intent to harm somebody right and that somebody in this case is it ok to go on what what about the context suggested that plaintiff was about to go out and hurt a kindergartner the fact that he