court my name is cynthia everson and i represent justin kelly the appellant in this case before your honor's i'm going to try to simplify it as best i can with a forty nine page complaint but there's just a couple of points that i would  to make before your honor's the right to a trial of a jury by our peers as one of the most fundamental aspects of our m judicial framework and in this particular case mr kelly has not received that i'm his cases were disposed of at the summary judgment stage and based on according to the court's orders qualified immunity and probable cause we're asking reversal of our on just a few of the claims for very specific reason of that are on the field before this court all are mr kelly's claims due process claims equal protection claims and his second amendment claims that are intertwined as well as his various claims for state tort violations excluding the malicious prosecution and false arrest claims that he might which are related to a finding of probable cause and the other state law claims have absolutely it's not a fancy all to any of the other state law that the district court's order is faulty it does recognize them it does not them so it does address them at least with respect to rendering judgment on them on the vote just like in the prior history of this case the district court did not substantively address those due process claims and no point in the two thousand and fifteen order or the two thousand and seventeen order does the district court actually substantively go into detail and provide respect to the continued seizure and failure to return the firearm is not addressed and i can provide if the court needs that i can provide the appendix references to those they are direct they are so they're mentioned so i'm not substantively so with respect to having a right of appeal we would contend that they are at least mentioned unlike in the previous in the previous case he gave a fair bit they were clear to me whether you were challenging the state law that recognized mr kelly's misdemeanor personally personally did and that is as it was not acting under the direction of the other investigators that she company mr kelly does not dispute that the police officers had  initially dispossess him of a firearm ok so she right so that was sort of my point and so i have and i don't want to take up a lot of time on this but i really i really was a little unclear against your second and claims directed i'm still not seeing how it's directed against this conor given the fact that he that it appeared that kelly did unlawfully possess the firearm on the night of the and they are the ones who returned at the farm so it's father and they are the ones who told his father he cannot give them to him even the affidavit by the returning officer acknowledges that that we told his father he cannot possess them ok and that was not with respect to that no they have not done any of that however they did something like that have to happen before years also of action it's our position no your honor i'm in this particular situation and this is a person who was arrested three times by sharp mic or police officers who thereafter was given a directive indirectly through his father that he can know that stuff i'm not sure i'm understanding the question well i mean if the if the seizure of the firearm and his his arrest well because of allegations charges that he violated the private security guard law what i'm asking is is there city correct because it's our position and we have provided in the record they policies of the shotmaking police department it's our position that that is a policy of the city of charlotte with respect to  future arrest based on bat as he was arrested in connection with possession of firearms as a security officer at a correct there's no indication that correct and this is also a gentleman who had previously you know had a trial for this offense previously been found not guilty and previously been ordered to return it was found in then four months later went through the same thing again so certainly from his perspective there's some uncertainty about future arrest and particularly when you know from a core of no record i'm certainly it's reasonable for him to desire something recorded with respect to his future interactions with law enforcement just sent them and we have a couple of minutes i did want to address one of the more far reaching arguments which is the constitutional challenge to addressed the private protective services act as an occupational licensing statute there has never been a court that has looked at the constitutionality of the private protective services act as a criminal statute certainly it for very important reasons largely so that the average person and a person born or intelligence could determine what conduct is unlawful so they can conform their conduct to the law yes and also to discourage  and here we have a situation where the record is replete with evidence of the vagueness of certain provisions of the statute specifically those that deal with security guards and specifically those that deal with armed security guards in board does not have the authority to do they mention that in the brief this proprietary license that they have created and there is nothing in the product protective services act that gives them the authority to do that however they have  in the shipman case because the shipman case is the one that deals with its constitutionality in that particular case someone was challenging and i believe that detective upright investigator was challenging the inclusion statutes as opposed to the exclusion  statutes as to whether or not it was constitutional to require licenses of some and then make exceptions for others in this particular case we have an issue with respect to undefined terms completely not terms that are listed in that are expanded that to regulate people who engage in private protective services duties or activities that is where the ambiguity really comes to the foreground because there is nowhere in the private protective services act where those terms are defined in when you are examining a law as a criminal statute they must be they must be defined we cannot allow an unelected administrative agency that is you know answerable to the people to create of which the people have no notice they don't know if all of those functions that are in some of the definitions and seventy four c two would require people to have licenses then essentially everyone in the state just for those reasons i would ask that this honorable court find those provisions unconstitutionally vague that's criminal thank you you have some time on the bottle thank you court found no issues with that first the the first time around and specifically sent back instructions to judge kater that he was to address allegations eleven and twelve in the complaint that was this the syfy instructions that is so far afield of being opinion that we've had in the in this in the nations of our of course the supreme court is now looking at leading the hun possibly looking at it with except insert in the new york ruffle and pistol weapons when they brought the law or to action in federal court they that went to the feds if there is a violation they are none of those parties are here the a t f not here the federal government whoever that may be is not here and that decision and it had already been determined by our court of appeals that could do it for fruit but just not for pay and that is our only involvement in that issue but i think the broader second amendment issue the true second amendment issue is whether he could possess it in defense of himself if he does that and that's why we're so concerned about this case it turns are all in it seems every security guard out there at every shopping mall and school and wherever will say well i'm not carrying this as an armed security guard i'm carrying this to defend  broader second amendment question is so far afield of anything this court or the united states supreme court has held some thought that it is that it should not be an issue i doubt it we are the arguments have been throughout this like a woman some time to come contradicting themselves on the evidence as to whether he was carrying a gun whether he had permission the owner said that he wasn't supposed to be carrying a firearm and that we're not absolutely certain but claim it is but we have tried to answer him as best we could without going too far afield direct the corps and address this issue of what the city's a role was in this action the city has never never indicated to mr kelly that he appendix whether or not the city had he had received notice from the city that he would be prosecuted for possession of a firearm and his response was no i think the most important thing is i would direct you a is a document which purports to be an a t f log a management log of the important in this case but when you go through the management log there are on three twenty wait twelve that's when the federal agents picked up their weapons  and as their note is picked up from c m p d property section and taken into a t f custody they taste went on and judge whitney found probable cause and denied the motion to suppress and after that the issues came up about whether or not this was a domestic violence crime judge whitney dismissed the charges based on the fact that county had destroyed their original records and the only thing that was available was a screenshot of the transaction of the conviction but it did not have any affidavits or anything like that that would give the basis for the federal charges the case was then just the second charge was dismissed by a t f a by the u s attorney but this this is where the transaction gets really murky  the extent that that once they receive authorization and the state no longer needs the evidence we'll get it back to you it moves on along and then ms everson since that e mail on through twenty eight two thousand and thirteen asking him about getting the property release and here she is talking about a knife and he writes back at you need the address and phone number sent and this is from her notes since state still considers mr kelley prohibited you can't can you provide me with the names addresses and phone numbers of alternative parties to release the firearms to so it was that the federal agent said the state still considers mrs atterson at eleven o eleven zero one the same day right back kelly agrees for the firearms to be released to his father gives an address and a phone number the same day officer gris well all since  they did not tell him that he could not this is sat straight forward it's right in the record and i'm not sure how to put it any other way but the record is absolutely clear that the city had no did not young people who possess a weapon but good morning your honors may please the court and bryant park from the north carolina department of justice i represent sarah connor with the time of the event in question was an investigator was employed by the department of justice to his principal job responsibility included ensuring that armed security guards were bryson's and reacting complied with the axed other requirements including training and insurance so there are nearly twenty claims at issue in this appeal and  by my count four of the federal claims and the state claims apply to connor so i'm happy to answer any questions generally but on this course jurisdiction which has been discussed already i would direct the court to as it started in looking at amendment right to own a specific firearm there may be due process issue if you have deprived an individual of their property generally but the second amendment is not an educated they're now in the presentation here and in the br is some confusion as to what the nature of the second amendment claim really is is it about the position of the specific firearm or is it about a general that deliberation of a right to possess a firearm generally and  on the state court claims as i believe judge you mentioned there we believe there was a final ruling on those claims because the district court said you know for these reasons referencing the past lack of probable cause the previous discussion of the of the probable cause and how because there is probable cause all the state court claims fall away and that is consistent with the state's position as well so i'm happy to answer the questions there are we haven't i guess if i could just speak briefly in my remaining time on on the brady issue so mr kelly has contended that we miss conner in particular failed to disclose exculpatory evidence but which is identified as legal research if you look at join the next one one one one two one fifteen there are it's got it's a series of e mails where ward briefly in response to some of the things that were brought up the compliant does allege of wait for vagueness challenge in for paragraphs three thirteen three fourteen with respect to challenging the specific provisions of seventy four c in the criminal context certainly could have been more artfully worded as i have conceded but the components of the way for a challenger in both of those paragraphs with respect to the mentioning of fourteen dash to sixty nine point three it is not an exemption it is a statute that also deals with the topic of security guards it also deals with the topic of on security guards and so it's a palace position that kelly in its own licensing requirements and authority it says anyone who desires to carry in a private protective services profession may apply for a license and then further provides and said we foresee thirteen  licensee show register an employee within thirty days and proceed to talk about what type of employees there is no provision in the entire chapter seventy four c whereby person who is not seeking to work in or working in a professional product protective services profession can obtain a license so certainly that would add to our vagueness argument in that mr kelly's compliance since he did not work for a he was not himself engage in a part of protective services profession and did not work for an interview that was it was impossible for him to comply with the boss and same requirements with respect to the mentioning of the who had and also the city of charlotte since the city of charlotte refused to return him his weapons the property records in the record including the a t s own property notes indicate that at all times the sharp metal or police department had possession mr kelly's fire on the a t s property sheet one one thousand and forty seven of the joint in the very clearly says that the firearms were maintained at all times by the charlotte mecklenburg police department affidavit that was submitted by mr kelly spotter and he which creates at least a genuine issue of material fact says that at the time the firearms were returned the a t f told him that the a t f did not have any issues with him continue at least creates a genuine issue a material fact asked to whether or not the city of charlotte interfere with his future possession of firearms by making that to his father that's consistent with the a t f notes that were mentioned just a few all that makes him prohibited from possessing a firearm north carolina is an open carry state his inability under state law to obtain a concealed permit has no bearing on his ability to openly carry a whack then and that was the request that we made