specially difficult for the reasons the court recognized in those men and second to last tools for filtering out speculative claims and giving officers a margin for error don't work well in these cases and the court doesn't want to rule where an officer can be held in to court on any routine arrest and force to defend the purity of his motives however reasonable his actions nor should the court want to rule that gives officers a reason to hesitate in situations where they should be able to act decisively i want to start with the point about complexity because i believe this case has all of the elements of the court identified in most men one speech can be a valid consideration for the officers in deciding whether to effectuate an arrest why doesn't qualified immunity take care of that if if in fact the speech by its nature is disruptive or otherwise in two years with the actions of the police officer that would give him qualified immunity whether there was probable cause or not i don't believe but the way the qualifying immunity works because if the speech is protected then the question as well was it clearly established that you can retaliate against someone for their protected speech and if this court rules in the know my point is that one of your arguments is beer that almost all arrests involve speech in some form or another speech is implicated in the incident of arrest but if it's truly integrated in this in the incident of arrest something like i'm going to blow up the president that's going to give you probable cause but more importantly it's going to give you qualified  it the problem is that it wasn't implicated as a reason for rest it was a situation between the two and it came about after the arrests meaning the statement was made after the arrest is had his interaction with with the defendant respondent here how could he have been animated  and he was motivated because mr bartlett didn't engage with his questioning earlier so you have two separate theories of retaliation you have two different actors you have a fast paced situation that's going to be incredibly complex situation for the jury to disentangle why is this any more complex than racial discrimination in almost all situations involving racial discrimination or allegations that there are it's complex mixed motives cases are the norm not the exception so why should we treat this differently we're now to hearing things were tearing a right the first amendment above below racial discrimination i don't know what are you your rule would encompass religious discrimination and so that's now less important than racial and discrimination should we be creating exceptions to the clear statutory command that any person who violates a constitutional right should be immunities and the elements of these actions have claims and all of these to prevent recovery even in some instances where we think that there would be there might have been an actual violation of the constitutional right and the same is true with arrest common law if the officer had lawful authority to make the arrest then that was the end of story and the arrest was privileged and that's the that's the principle that congress didn't sign when  already because there are a range of cases and at one end i think there is a case that's sort of like this case where you've got the disorderly person situation a police officer arrives at the scene where two people or two groups of people are shouting at each other and in the course of the op while the officer is present one of them says something insulting to the officer and that person ends up getting arrested and so you have the question of whether that's that has to go that may have to go to trial as to the officers motivation was it because that kind of fuzzy standard of disorderly conduct was mad or was it because person what the person said about the officer so you've got that category maybe at one end at the other end you have a case like a journalist has written something critical of the police department and then a couple of days later or a week later today two weeks later or whatever some period of time is arrested is given a citation for driving thirty miles an hour twenty five mile an hour zone so you are what you ask us to do would create a problem in the latter situation what the other side asks us to do may create a problem in the disorderly person situation so do you have any way of solving this other than asking us to decide which which who'll which of these on the tractor falls we should adopt i think that probable cause element actually does a good job of capturing the subset cases the jury returned a verdict for the defendants and so i think probable cause actually does sort well but i think we're just dissoluteness of justin is that in the second category of cases and you can think of it is the journalist case or you can think of it as a case where an individual police officer you know decides to arrest for jaywalking somebody wearing a black lives matter t shirt or alternatively a make america great again cap or something like that  know that there might be probable cause the person jaywalk to jaywalked and the point is that there are so many laws that people can break that police officers generally look the other way  you know you're saying something that the officer doesn't much like so he doesn't look the other way i think so with the jaywalking cases and i have i'd start by pointing out very based in alaska and probably the vast majority of states you can't arrest someone for jaywalking and if someone did their right to be discipline you know they're driving and they have a bumper sticker that the police officer doesn't like any postum over when he wouldn't otherwise pull them over because the person had failed to signal a turn and if you look through the cases  side by the parties and mickey the case of i pulled someone over and they had a hillary twenty sixteen bumper sticker and that's the alleged basis for the television you don't see them those cases are incredibly rare and the cornyn hartman  decided that it wasn't going to design the rule or for the vanishingly rare case and it's going to design the rule for the court is rule should the probable cause element should apply for the stated crime of arrest of a crime charge your client or crimes closely related to those crimes and while there has to go further to address a situation like the court was dealing with and lows man i don't think this case presents a question do you think the effort reach a compromise between the two cases that justice alito rose we saw in those a case where i think in the court room someone said well surely there is some statute he violated now that doesn't sound like a good case for your side so among other things i've written down we have one mounted health pla engage in protected expression that will be too hard to show the defendant harbored retaliatory animists in a lot of these cases he did it for political or racial maybe or other rea animus was a substantial factor motivating the decision that's a little tougher to show where there is probable cause and then even in the absence of the probable cause even in the absence of protected conduct he would reach the same decision that's beside the point i suppose he added to that and we took what justice rehnquist said in crawford l if you get to the stage where you get through one two and maybe three and there is probable cause for something the plaintiff has to show with some objective evidence that the arrest w pretext for retaliation that's one way of doing that's justice rehnquist's way a second way is that you have to know that you at least have to know the arresting policeman but there is a statute that forbids what he did you can't find that out later or no reasonable person would have arrested or no reasonable policeman without the animists would have arrested this person for this thing in the moment that's after you prove that he had a bad motive the police there might be others but what i'm looking for looking to what chief justice rehnquist said and others that come at the spur of the moment is some way of guarding against the danger or the justice  said in his second example without destroying and raising the huge problem that in his first example so i give you three that i don't i'm not buying the three i gave i just want to set you on a track thinking of that i think some of those rules are suggestions for you cave justice prior i think would be very difficult for courts to administer as for example the no reasonable police officer would arrest and let's see now if no reasonable police officer in washington d c no reasonable police officer in a specific neighborhood of washington d c facts of arrests are incredibly varied to the minor details matter and i think that's going to be a show that there was similarly situated people being treated differently which is the normal thing that a plaintiff has to show for those types of claims i think the court could do something similar i think the problem with that is what the court recognized in hartmann is that the exception becomes again difficult to administer what's a direct admission and how does the court how does the court draw that line and that can be litigated in a variety of cases and i think the court obviously has carved out exceptions in the past and most recently in those men but i think those exceptions can be problematic and i think the best rule again is the clear bright line of if there was probable cause for the arrest then there is no liability for retaliatory that in part on the practical and policy concerns that you started with that you raise and justice alito also points out but the ninth circuit has had experience for a number of years with a rule that has allowed suits like this to proceed at least based on the briefing it doesn't show any massive problem or correct me if i'm wrong about but i think the data is a little bit noisy and because until recently you had qualified immunity that would bar a lot of these claims and i think if the court rules in the respondents favor as a consciousness of our rule trickles down you have more and more retaliatory response being stated and i also think it will no i wasn't explain to me on the qualified immunity just a sort of my or the head raise that too why why think it that's going to be a subset of cases but the bottom line point is the ninth circuit from it's been a number of years now it's had the rule contrary and it's i would have expected if there were the problems that you articulate understand what you are to kill at them coming out involve conduct from before then and so that's why i think you haven't seen maybe the rise in the number of cases that i think a ruling the respondents favor will require and it's not just the total quantity of its own special qualified immunity rule for use in this particular situation i think it's more of a rule of summary judgment it's the the standard summary summary judgment on summary just as i seem to be really consistent with our think it's also exactly what the d c circuit was doing in hartmann which in the opinion that the court overruled thank you counsel walt mr chief justice and me please the core two points first every similar constitutional tort claim in one thousand nine hundred three has an objective requirement that prevents a purely subjective inquiry into officers motivations if anything it is more important that claims of retaliatory arrest be subject to such a scream because as the bipartisan states brief from d c points out they're easy to ledge and difficult and expensive to defend against second of the mr will i mean in the fourth amendment context for example the fact that there's a probable cause requirement is a function of the substance of the fourth amendment what's unusual about this case is that you're asking for a probable cause for a quire meant that bears no relationship to the actual first amendment violation other words it makes no difference to the first amendment that there might have been probable cause for an arrest if in fact the arrest occurred as a result of retaliation for protected speech so the plaintiffs mean exactly the same argument to this court and hartmann justice kagan and the court rejected it i think for the reason that although of course what you're trying to get at is was the officers motivation the speech or the unlawful conduct the probable cause evidence is the best way to get at that across the range of cases but as i read hartmann heart win was very dependent on two factors neither of which is here the first is that the prosecutor is absolutely immune so that you were dealing with upstream actors and the causation was very difficult and the second was that there was a presumption of regularity that attached to prosecutorial action and the combination of both those things meant that the court said you know what in the usual case or in the you know it i turn and i think it that isn't sort of fair to the other ports portman because it did rely on other things that i think do play equally here but just for those two yes the fact that you had multiple actors and hartman and one of them was absolutely immune did make the causal increase difficult but i don't think them we should understand hartmann is just a case of prosecutors i think reading justice souter's opinion although that was the reason why the causal inquiries difficult what he's focused on is the factual difficulty of causation and he says the body of probable cause evidence is the best way to get at that across the range of cases and although we don't have the same presumption of regularity for officers that we do for for prosecutors we do have an even more ironclad rule of the fourth amendment which is that every arrest is per se reasonable for purposes the fourth where you have probable cause and so in the same way that you have the presumption of regularity gives you some reason with prosecutors to think it was an induced by the animists i think the more rule gives you the same rule where you're going to rest good that's supported by probable cause i think that's a very good reason to think that's why the officer was doing work still try to sort of build a cat here by at the moment we've got the speech and we have some animists against speech and we have a rule that says officer you have probable cause that it that's who you are that it could by played those who we can and simply say where there is probable cause yes that's it unless there is objective evidence that it was a pretext for example when you had the judge six years later trying going through the statute books to try to find a statute that fit within probable cause for the arrest that sounds pretty much like objective evidence of a pretext where the officer arrests him for something that was never hit nobody's ever been arrested before for the hot in this circumstance like a pretext and so why not do that that's a compromise it gives some protection to the first amendment without avoiding the most horrible mess that you're afraid of and it's been suggested before so why no so those are two very different things just as prior the second may be real i think the first is a it's a paper tiger on the first if the court sets it up to say look probable cause is important evidence surely to the his statement which isn't captured on video but you just a legit you have to take it is true if that gets you to a jury i don't think that's actually going to do anything but the second the second thing you point to is different right that's the devon pike rule that's the question of which the court it was one was interested about last time when do you have to identify the offenses at the time of the arrest shortly thereafter or leading up to some criminal proceeding now for the reasons our brief weed or the court to adopt but i do think if the court judge rule in that rule further away from the trial or limited at the outset of a civil proceeding i think that would be a meaningful limitation i just think that the first one that used you sketched out where it's sort of the weighing of evidence i think if you look through the cases that's going to allow all these things to go to the jury and that was the one thing i want to sit you justice alito which is i look i think we have by far the best reading of the common law hartmann but even if the court disagrees with the stuck trying to flee if you look at the cases you just do a simple westlaw search for tony to arrest hundreds and hundreds about two hundred fifty in the ninth circuit alone just post what i call just in the last five years the number of those that have credible allegations of your second scenario very few and every one of those has gone to a fact finder the fact finder has rejected that was  that whenever there's an whenever there's probable cause and there's a first amendment allegation what's really being complained about is discriminatory rast so what if we were to say that a party making such a claim has to plead and ultimately prove that there is a comparative who engaged in similar conduct or people who were similar and main gauged in the same conduct but they were not arrested so i don't this was the common law didn't have a rule in the court and hartman didn't look there and i think the reason it's going to be a problem is that you might be able to run the analysis in the right in the protest cases those are a fairly small fraction of the cases virtually all of them there's not going to be a computer i mean i don't curse the court to look at the video here both of them yellow if there is no comparative than the plaintiff is out of luck that's why but i don't think that really is going to track the cases that the courts worried about on anybody's view it's almost two defendant friendly view because you can have an arrest that isn't supported by probable cause that seems fairly obviously retaliatory and there are some of those that go for the lower cases lower courts in the plaintiffs prevail but they won't be able to show a comparative because there's a one on one interaction with the officer so i just don't think that's going to pick up the right set of cases on this is how did what you said about devon mr well because i'm just not sure i understood what you said you think that the government has the right view which is that the devon peck rule should apply here was problematic you could limit the probable cause inquiry to some reasonable timeframe after the arrest no i don't think you can do just the arrest because you know you get back to the station house you consult with the prosecutors and it turns out the statutes different than the statute thought so it's not waiving the weapon it's reckless endangerment but everybody knows it's the same course of conduct but you could set some timeline on it like that and we suggested in our brief as a as a fall back from down and back that where you have criminal charges it's the charges identified up to and through the criminal complaint or in the absence of charges it's the first stage in civil litigation when the defendant can we say look you haven't shown a lack of problem cause there was probable cause for that we see is not so uncommon where people are supporting one police chief over a different one or someone who has alleged that the police department in that municipality is corrupt and all of a sudden they're getting a slew of you know would insulate that behavior so the question is is the burden that you're speaking about of there be perhaps you've pointed to ten examples the briefs of cases that in your view should not have gone to a jury in the in the in the ninth circuit so less than half a percent of the cases that were filed alleging retaliatory arrests have actually done to trial is it worth giving up the protections of the one nine hundred eighty three for such a fundamental right as the freedom of speech right my answers to sure so three very quick points the cut claims are common but they are not often meritorious we don't want to insulate them from liability you just don't get damages under one thousand nine hundred three just as you did at the common law but there are other mechanisms and the reason it hasn't been a huge problem is because until recently even qualified immunity which will have gone forward the ninth circuit has warped the summary judgment standard and a lot of these cases settle because they know when the ninth circuit they're going to have to go to a jury thank you counsel with respect to officer never has mr bartlett questioned why afternoon of his one to speak with him that angered officer nearby is and then he told office it never is that he did not wish to speak with him and asked him to leave him alone so weighed in reference to officer weight or excuse me a mr bartlett approached and expressed his opinion that officer wait did not have the right to speak with the minor who had accompanied him to this party without his parent being present and that angered officer wait and then led to the situation where about this time afternoon of his arrives and then you have the video which left of the video picking up at that particular junction and i'm interested in the third point you made i think it was or maybe it was the second one that there are other mechanisms for screening out the meritless cases is that right get your hopes up point two or three or that was my last point but i'll go on the last point i some that you believe that in this case your client's claim would survive qualified immunity in summary judgment i'm like that it it's right it if it satisfies tom and it would survive qualified immunity yes your honor and that doesn't that refute your claim that that those doctrines would rule out the rather trivial cases in terms of their clients or anything that was of social importance this is just i mean he's not protesting some social issue or making some important point he's involved in a personal dispute with a police officer your honor my my client was expressing his disagreement with how the officer was conducting his his and his and investigation when he was doing there in city of houston versus heal this court again and the right to criticize a police officer as one of the distinguishing features between a police state and a and a free country and so i would certainly submit to the court that that is an extremely poor interest to mr wilson and i think you know it's obvious what the paradigm case is that gives a problem to this side but it's also obvious what the paradigm case is that gives a problem to you when it's the one that justice alito mentioned earlier on it's an encounter between a police officer and a citizen that goes south and part of going south is that the person who is stopped engages in lots of back talk to the police officer which in combination with some forms of conduct gives the police officer reason to think that the person should be arrested to prevent something going on so whether it's a resisting arrest arrest or whether it you know it's a disorder conduct or whatever it is and there's likely to be speech involved in those problematic encounters where we think it's possible that the police officers should arrest the person in order to prevent any greater danger so so what do we do with that category of cases if the speech is in any way there's any question whether or not the police officer has a right to take that speech into account then the plaintiffs are going to lose those cases on the basis of qualified immunity and there's been a number of those cases for example the fogel versus collins case where there was speech involved on the van it was talking about a bomb or something like this and and the officer made contact with that individual  detained them investigated them except for and the court said qualified immunity your and your and i looked and i suppose i'd thought i mean the interrupt your answer but aren't those going to be factual issues in dispute that won't be resolved until trial i don't know a lot of the cases the that the speech that was engaged in doesn't particularly be seen to be in dispute in fogelberg as columns the speech was much a question of motive right well there's two different things i should have animists or intent you have issues where there's the speech is a question in the ship to cases where the question of the officers intent becomes relevant and this is one of my points that i think i have been able to answer i want to come back to justice leaders question but i want to answer your honest question two  at this time in the court's history we have a situation where the interactions between the citizen and the police officer are being subjected to increasing technology more and more in the future cases that come for this court you see it already in some of the what it shows is that the individual who is ultimately arrested is arguing with other people and they're calling each other names and they're waving their arms and the police officer arrives and in the course of this  encounter the person who's arrested says some insulting things to the police officer and then some period of time goes by maybe it's thirty seconds maybe it's two minutes maybe it's three minutes the person is arrested and the arrest the says the only reason why i was arrested was because i exercised my free speech right to criticize the police officer that is a question of subjective intent and i don't see how it is going to be weeded out at the pleading stage he is rude or says offensive things does not establish that the officer retaliated against that arrestee for that conduct and and whenever you have the interaction between the system documented then if there isn't any evidence that shows that the the officer retaliated you can be rude you can say the things you want to but that doesn't mean that the officer retaliated what does that mean what it looked kind of evidence do you need to need the that the person who is bringing the suit to say the officer said that he was arrested me because of something i said is that what you're looking for i don't think that that that's what you necessarily need i think what you need is to meet to help them out healthy test both problems of the mount healthy test you need to prove that but for your speech you would not have been arrested and then the arresting officer certainly has the opportunity to say we would arrested you in any instance for that just sounds like a jury question so we would be sending every single one of these cases to a jury i don't believe that you would be saying every one of these cases to the jury and this again gets back to the the fact that these cases are going to be documented there's going to be a lot of evidence about this and the court can look at that evidence and evaluate that evidence in a summary judgment context but it all going to be documented i mean you know you take an event like this you've got ten thousand mostly drunk people in the middle of nowhere and you've got a police officers i mean how are all those going to be documented there's never going to be a situation where everything is documented chief justice with twenty nine thousand if i got the number right twenty nine thousand arrest every day maybe i'm wrong but i would anticipate that only the tiniest percentage of those are going to be document but which you've been on film right i mean audio video other means to document the interaction took place and let me just there's a problem is i have the same problem i don't see a summary judgment deals with this because you would have thought you'd have a player in on the one hand the pla ff would have said i did interrupt the officer i did criticize he arrest or criticize what he was doing i said you're unfair or worse then you have a police officer arrested me now no one doubts that if the plaintiff is right that is clearly a violation of the law so what is summary judgment to do with it the jury either believes his story or believes the defendant story and that's why we're thinking a large proportion we'll go to the jury your honor i think is telling in the state of alaska and this case in particular the state of alaska is not the cutting edge of technology and yet in the state of alaska the absent evidence was the testimony from from the tenant  supervisor of both of the officers involved this case ninety five percent of the interaction between police officers and citizens or our record in the state of alaska that has nothing to do with it really because in some different state the state of  don't know in a different stake there are a lot of people who do say rude things about police officers in their hearing and there are police officers who do sometimes arrest them and there are a set of ambiguous circumstances as to what the true reason was if the defendant is right nothing wrong happened if the plaintiff is right it is a serious violation of the b that's the issue in this case and you tell me there won't be cases like that i find that hard to accept i'm not telling you there's going to be cases like that no but you're saying there aren't many and after this opinion comes down in your favor they're saying there will be more i think that the experience in the ninth circuit despite disproves the the concern that the court has expressed there and i would just go back to a case however since grover that i think is very telling if you want to talk about something that's easy to say it's easy suing the public defender one of the defenses in that was if you allow this case we're going to be overrun with litigation against public defenders quite the argument the argument as i understand it is one yes there will be more cases to the jury might decide most of them correctly by the way but there will be some not and three this will have a very perhaps for a better perhaps for worse an effect on policeman but they will be very careful and not arrest people whom they should arrest you know that that's the kind of argument that i think is being made certainly and the only thing that a police officer needs to be concerned about is a focus on a force in the law and as long as a police officer remains loyal to the force in the law then that this situation takes care of that as well that i'm not very maybe that's a very cavalier assertion i get back to the fact you have eight officers you have ten thousand people you have a lot of drinking i would say the police officers are worried about a lot of things and one of the things is worried about is the first time you get it in your face interaction with one of these people you want to get them to you know coughed and out of the way if it's something within the range of disturbing or disorderly you don't want to sit there and think about it too long that's fair enough as a general concern doesn't particularly in our view have been strax in light of the facts of this case bear in mind that the only way you could communicate at this particular event was to get close to somebody and speak with them there's a very different whenever you start talking about probable cause to arrest somebody there's probable cause in a church and there's probable cause whenever you're in out in the middle of alaska next to a d j that's blaring out music extremely loud did did did mr mccoy have reason to fear officer wait when officer wait was standing half the distance to ultimately officer wait and mr bartlett were standing mr bartlett the evidence in this case from mr bartlett standpoint is he approached ops through a in a non threatening manner and simply communicated with officer wait in a manner that accomplished him being able to hear that communication so the idea that this is people screaming at each other in a church simply isn't borne out by the fact as you said that an officer merely needs to enforce the law but the problem i think is that in a lot of interactions that lead to an arrest is going to be something critical said potentially of the police before the arrest was made that certainly potentially a commonsense common understanding tells us that that people say things critical when it's a hot situation right and so all of those cases if it's more than rude and offensive but rude and offensive with something critical the police will go to a jury why not absolutely not why not because a potential suspects of noxious behavior does not form the bas view of the police it's not going to get to the jury because it's not evidence of the officers intent and if you don't get evidence you don't have sufficient evidence to establish the officers intent was to retaliate against you for that free speech then you lose your mind p suppose then the word their house to be objective evidence the even though there was probable cause there still has to be defeat the probable cause if there is objective evidence that the probable cause was a pretext for the arrest that's the rehnquist i'm interested in what you think of alternatives read through mt you're just saying in your briefs mt healthy but the two last parts of mt healthy are worrying in this context because there are riots they do exist people do get hurt and the police have to somehow we doubt the people who are engaged in serious physical riotous behavior or worse from those who are the innocent bystanders or just are participating because of their beliefs etc it's very hard that's why i'm looking for something that is quite mt healthy but maybe close but i think that the the opinion that was written by justice ginsburg and reichel and the situation where you have on the spot safety issues that those generally would result in s judgment because the truth again in our opinion the truth comes out and the truth as a trial attorney one thing i would like to emphasize in this court is the truth is a much more stubborn and powerful thing that i think this court gives its credit for in many of its decision the truth has a way of of exerting itself in these circumstances and the in those situations that would ordinary result in summary judgment because no reasonable juror is going to believe that whenever you an officer is an immediate compelling safety issue that actually the reason you when you arrested this particular unit is because he he made an insult about your haircut or about your mother see this is involving safety issues are not the ones that are troubling  h the cases involving a lesser crimes like the one that your client starts with and there are many there are areas of the law where intent has to be proven and those areas of the law direct evidence of an unlawful intent is often not present but is it not the case you can answer this as a trial lawyer is it not the case that intent is very often inferred based on  a sequence of events so someone exercises the first amendment right to say something and shortly after that there's retaliation and get some adverse action is taken against that person can not infer intent based just on that sequence of events if the evidence is compelling enough to do so i would say yes but you have to bear in mind here i've heard the same that you know these are easy to make and hard to defend i would add some qualifications that as trial attorney they may be the relatively easy to plead but they're very hard to prove establishing somebody else's intent is not an easy thing to do you need to have good evidence to do that that evidence means a trial well i think you judgment to defeat a summary judgment evans you need to have enough evidence to convince the court that a reasonable jury could find in your favor and that evidence can take a wide variety of forms and we're certainly not here category down let me let me start with the first point that's going to take care of a significant number of these cases and that is that if you bring the charges on cases where you have the proof that the crimes been committed and you prosecute the case painted conviction you've eliminated that entire class of cases because the damages go away that the righteous indignation of i was wrongfully accused i was on justly attack in the name of justice you eliminated those situations as a practical matter and i think that there's another area where these cases get screened out and that is that let's be honest to succeed or have a chance to succeed in one of these cases you need to have an attorney who's going to take your case and i don't think that it's i think it's very telling that you take for example ford versus city of yakima or you take for example mr bartlett's case this case arises in the first instance from an attorney who represented both of those individuals in the criminal matter and got very familiar with what the facts are why do you see it was a cure for your first example you say well you have to try and get a conviction i mean that the officers entitled to take the action does on the basis of probable cause and the fact that a prosecutor later on would decide ok at this particular moment in the middle of you know all that's going on there can see in the video in this case that the maybe the arrest was valid but it's not worth prosecuting i didn't say that you have to what i said is that if you do you that entire catalog why why because as a practical matter number one you don't see him you read through the all the case of inside before this court on person in retaliation there's very very few that have any but theoretically the person even if they are arrested prosecuted and convicted could say i never would have been arrested in the first place but for the retaliatory motive under hec versus home for your dad i mean harassed or not i apologize ron if you could restate the question for the person in your example who is arrested then prosecuted and convicted you said that claim would never go forward and i'm not understanding at least theoretically why that is so because the person would say you never would have been arrested in the first place and everything that followed would never have occurred either but for the rich how a jury motiv of the officer people can say what they want to say but the fact of the matter is in those circumstances there is no damage the damage it whenever you've been convicted under hector's is home for you can't challenge anything that has in any way would impugn that the validity of that conviction judgement you also said earlier that the ninth circuit experience on summary judgment had shown that this was not a huge problem which i think is  a good point for you but as justice alito pointed out hasn't the ninth circuit watered down the summary judgment standard in some ways to achieve that was your honor what i would i would describe the ninth circuit is doing is vigorously applying this court's mt healthy  test and and applying that in the summary judgment context and there is really i don't think any intellectual distinction between with the ninth circuit is doing and this court's mount healthy test except it's focused on applying it in summary judgment context and it's taken all the evidence he remains truthful to the truth seeking out the truth which is all the mr bartlett has ever asked to do either in the criminal case are before this court or the district court or the ninth circuit court is that he be allowed to pursue the truth when he has evidence to support it is through mr wilson i'm wondering what you make of mr wallace proposal or maybe he wouldn't call it a proposal maybe he would call it a fallback position but the idea that there is a probable cause requirement but that it's limited in particular by getting rid of the devon pectoral so it would be limited to crimes that are identified by a police officer around the time of the  our belief is the best rule is that evidence of probable cause is one of the factors that the court should be looking at in this area and in many instances it very well may be a dispositive factor but in many instances it may not be and it isn't because the probative force of probable cause really varies depending on the severity of the offense i don't think that anybody's going to succeed in a first met retaliation case because the officer rest of them because they were probably caused to believe they committed a homicide which is simply not credible so those i deal with the back to the rule or where don't you advocate the rule that you set forth in your previous that a probable cause requirement applies to felonies but not offenses and that's really the only issue that that so you're thinking of there are some mr meters that are fairly serious i could imagine some that might be so i see i take your point but but certainly petty offenses and where this this issue arises is not in murder investigations it arises where the officer's discretion is at its zenith in terms of him putting his of his desire his whether he wears his emotions on his sleeve or whatever it is about an officer that motivates him to act in these situations and they involve petty offenses struck in the sidewalk disorderly conduct in amounts to nothing other than the officers kind of way to retaliate in some circumstances against an individual because they have exercised their free speech rights is disorderly conduct always a petty offense i think in most instances it is but there's some i could invision some that it may not be if in fact disorderly the law not enough to just look at what the is i think that again what we're proposing is is that the court view probable cause in light as a significant factor but not necessarily a controlling factor in whether or not you can stay the person in retaliation case and that allows the court to stay focused on the truth loyal to the wording of section one thousand eight hundred three and at the same time get to the bottom of these cases in an efficient manner and i want to talk just if i could about the common law and make one of the point where i get their entire versus glover this court talked about you know said well the hysterics you know if if the defense to this is th law as drafted by congress is going to lead to an undesirable result in power versus the other the court said that is up to congress to decide not this court what long discuss is congress supposed to change the section hundred eighty three for example in the prisoner litigation reform act whenever congress proceed that prisoner litigation was out of control they went back and they amended section one thousand and three to deal with that problem the congress argument can cut both ways of course if we were to follow the hartman analogy here and to follow what the other side says the common law congress could always change the law to expand so i'm not sure that gets you that far it gets us that far because the starting point is what does the statute say well the starting point is precedent what the statute says and what the president says we look at the common laws we have two strands of precedent to look at one look at the common law analogies and the other is just hartmann itself and stew both those strands of precedent and i think you're about to respond to those but i would like you to sure and i guess there's an important concession i believe in this case by the petitioners and that concession is that at at the common law that there was no probable cause defense to run full arrest for misdemeanors there's no dispute amongst the parties as to that point this is a misdemeanor offense that the common law clear you had a constable had the right to arrest we're in a fray and they also have the right to arrest for offenses that were committed in their presence and so they did have the right to arrest and nonetheless even though they had those rights they were held liable if they got it wrong and so i think that the court need no go go no further in this case to look at the common law and say no p c defend no problem caused offense or misdemeanors at the common law if you want to look to the common law for guidance in this case a point was if you go to the common law our position is you start at the statute the statute says we prevail in this case you go to the common law the common law says we prevail in this case and even when you get into the felony area that the one case where this court has spoken in that regard was dean's been versus wealth and it said indians would versus wilks that the only defense were the only instance where probable cause was a defense is in a retaliatory prosecution case which this court has already addressed in  the versus more circumstance so i don't think that you if you go down that path it gets you where they want to go in the instance so that's our analysis of the common kind of fitting those pieces together i did want to touch this room briefly  one kind of aspect of the i see i'm out of time but it will get you can touch briefly on it i do say that the typical case i think it's very important for this court to realize what the tipple case is not it's not the cases that are concerning this court about this recorded or otherwise documented firmly thank you thank you counsel two minutes which borders on thank you and i start off by pointing that this case in front of the court is a typical arrest scenario that the court needs to be concerned about in crafting the rule on the common law point it's not correct that there was never thirty t on probable cause for misdemeanors a common law the authority depended on the specific law of the jurisdiction in statute but the but the bigger point is that when the common law did authorize or officers to arrest based on probable cause then if there were probably cause to make that arrest the rest was privileged and there would be no liability and that's the rule we're asking for here we're today virtually every officer is authorized to arrest based on  a small point it's i don't think it's correct that a conviction for a crime bars or retaliatory arrest lawsuit arising out of a crime it's the high livy civi snyder case and i it doesn't bar those claims because in hack the bar is would be civil litigation call into question the validity of the criminal judgment and retaliatory arrest litigation doesn't call into question the validity of the criminal just judgement just says that should have never happened or wouldn't have ever happened if not for the bad motive thank you counsel the case was submit