a person walked into a kroger store not violating any laws whatsoever he'd been doing that for years and all of a sudden somebody decided because he was open carrying a weapon which kroger allowed through their policy and went to heil steak laus through nine point six eight they decided they didn't want him in so the security guard on his own without consulting with the  company decided that he had to take his gun and put it in his vehicle this case should have been judged by the contemporary is contemporaneous facts which were the arrest record the he be report which is the incident report and the cad report which is the telephone report to the police all of those show that he was asked to leave because he was open hearing this was also confirmed by officers after that the trial and these documents plus mr zucker's testimony at trial make it clear that the security guard's belated argument that he wanted him out because of his demeanor was not true because that was a belated argument it wasn't raised till eighteen months after the fact what do we do with the fact you may be right about all that what do we do with the fact that the security guard is by almost all of our press the dead in the situation somewhere out of this not a state actor so his actions are irrelevant that's not true because he asked the simply asking for rast does it makes him more state actor they disagree of your honor in this case paul in ohio in federal court is that the person can give information to the police officer but once he engages the police officer he's crossed that line in this case and he engaged in place officer by the lying to police officer stating that there was no then he engaged he engaged the police officer by saying after everybody knew there was no sign there he still wanted him arrested that is not just giving information he engaged  vs fair line private security guards searched a customer took his money arrested him detained him and transported into the police station where he's booked for criminal trespass sounds like a lot going your guy did and they said that they were not a state actor because there was no preexisting agreement with the government while the premier just greenman is not the same thing it's telling the government the law getting in the believe it and getting them to arrest him based on that law so you're saying by lying to the government you become a state actor oh yes it was a case i'm sorry to interrupt you but what case do you have for that proposition that by lying to the government you become a state actor i have no case for that because i'm saying that lying to the government is engaging the government by the by actually in line to make it two things he lied to the government he lied to police and he told them  to rest when there is no grounds for the arrest that's in gage's he did more than just provided for what about that meyer case which is that it's boykin versus van buren which is published where they said someone stole a drill i think it was a drill you might you can correct me if i'm wrong and they called the police the police found him brought him back to the store so they misrepresented to the police and said wait a minute i creep paid for this and they said and the store admit prepaid for why isn't that seems to me a misrepresentation to the police and yet we said no state actor in that case it was a mistake where the security guard didn't know the actual truth in this case the security guard did know the actual truth there's a big difference between making a mistake and telling the police officer something's wrong and it being a mistake in another thing to tell the police officer something's true when he knows it's not true it's a pig difference why can't you just fill in for state law toward versus all the state law toward is in there i understand that but then why torture the state actor a doctor and to law is somehow unique because i i just can't see the scenario where every lie to a police officer converts someone in do a state actor well if i hear you correctly what you're saying is permissible to lie to the police that's actually a crime burke and so they can prosecute and they can do all those things book by law they don't become a state actor i don't have an answer to that other than the fact that the research i did indicates when they give just information in place officer they're non state actors but when they go beyond just giving information like lying in asking the police to do something that they're not allowed to do that is engaging them in and you don't but you don't have a case for that crime no i don't thank you but there is  situation all of these issues that we raise are very closely associated they're closely related and this specially the first two and the first two deals with whether the judge was correct in introducing a nine one one emergency call which was not in the record and the second was is the issue of probable cause so i want to first address this issue of a nine one one call where it was an emer call in the first of all police have to investigate any call in this case there was no record of a nine one one call there was a record of a call whether was nine one one emergency or not we don't know from the record however even if there was a nine one one call the police officer testified at trial they did not treat it is an emergency so the actors and circumstances that the judge relied upon were not there in this case can't turn a blind eye to the situation in this case we have a situation where the last under nine point six eight you cannot keep somebody from open carrying a weapon unless congress s only statute in ohio that says you cannot have a gun in open carry a gun in a store is the section i quoted i think it's twenty nine twenty three point one two six in that section it talks about they have to post a sign so they don't post a sign that they don't want to get in there that means a gun is allowed but doesn't  that's an excellent question well i'm not so worried about that being an excellent question i want to have this one when i know the answer is answer the question is a resounding no better and why is that the reason is because the very cases that were cited by the defendants cit three action or filed the suit him in later case called marcus vs repco they came out and came up with the argument you're talking about a reasonable explanation but this is a quote from the case this right to  however is not absolute for such as conditions may not violate the law so we have a nine point six eight statute in ohio that allows people to carry unless some losses they can no sign there and he lied about it in court and i could ask one question about nine point six eight i'm sorry doesn't that provision only prohibit the state from passing ordinances rules and regulations that inhibit an individual's right to bear arms it doesn't say that it is the it just makes the rank of thing a person is not not i think it doesn't make it like that a person cannot be inhibited in but i thought it prohibits the state but doesn't say that in statute your honor and here we have a police officer that saying you can have a gun in the store ok thank you court's permission i'm only going to be reserving five minutes of the fifteen minutes allotted overall to the abilities to speak to specific issues related to my plans for the reasons articulated in our brief we respectfully request that this court affirm the judgment of information to a police officer albeit related to a potential criminal trespass even if it were to go so far as to request an arrest of an individual would not satisfy was he mistaken about the sign that it's a serving alcohol and then the second sign which was actually present at this kroger related to possession of a firearm while the consuming alcohol on the premises so no one was consuming alcohol at kroger or that i've never been to a kroger or people consume alcohol is it is that accurate for this o just for i regret to inform you that wine tastings now take place broke up a potentially even liquor tastings depending on the location that you're out there was it happening at this form i know that they did they did occur at this particular location i don't believe that we have any evidence in the record indicate that it was occurring at this moment so based upon what is in the record i believe it's there at all other occasions you would be allowed to carry a firearm that's correct your honor and so then why did that he have him arrested why not let him go at that point well for the reasons articulate in our brief just for the reason that mr dressler the opponent in this case was stopped at the front of the program was not simply because he was carrying open carrying a firearm in fact the testimony indicated mr dressler was a weekly patron for multiple years at this particular program had never been stopped on any occasion by mr rice or any of the other s c b security guards on this particular occasion it was simply because he had concerning demeanor to mr rice based on the fact that he was walking stream we fast into the store he had a hat down over his eyes and seemed to be just sort of briskly moving into the store and cause sufficient concern it sounds baseball hat is a security risk such that so he told him he was excluding him because of the gun not because of the security risk well that's that's not exactly accurate accounts with the palin misrepresented to the record in terms of the reasoning that was provided to mr dressler at the time as to why he was being asked to leave storm i mean the procedural posture when this was get dismissed excuse me was that summary judgment summary judgment and so the facts are viewed in the light most favorable to the point correct that's correct your hon and so why isn't that a fair reading of the record well for two reasons number one the factual indications provided by by the appellant in their briefing is inconsistent with some of the video recordings that were taken from the store at the time so mr just lawyers argued that there was no conversation there was no attempt to stop him going into the store but i thought you didn't contest he was deaf in the last year or something to that extent in the in the criminal case you presented expert testimony indicating that he did have some deafness in his left ear and frankly i would just suggest that that is nice it is unnecessary for the germination to day as to whether or not you actually heard him it was simply that the security guard made that attempt and that was the information relied police officers to realize that i'm out of my five leave the premises yes your honor it's discretionary choice that a business operator may make as to whether or not to exclude farms from the premises even if they don't post the signage that specifically excludes firearms from from the private property they can nonetheless  him to be arrested am i mistaken about this isn't so only after dresser was arrested in place and by her police cruiser but didn't meet the officers confirmed what they wanted him arrested right that's one version of events mr dresser i says for a couple different versions of events but that is one of them that that notion confirmed that he wanted johnson prosecuted for criminal trespass it was only after the arrest was complete and he was back in the after the subject and so can i ask you about kroger's policy is it correct that kroger posted the sign that while serving alcohol no guns but they allowed it other times i am unsure as to that policy i believe that's the case  i think that the person assigned is irrelevant to this analysis because if you look at dresser's rice's rationale for removing drugs from the property instructing them to leave the property premises regardless of whether there's a sign there based on the actions of dress or interacting with race rice had reasonable grounds to instruct them to leave the premises i wasn't exactly sure about your answer just the  question this kroger haven't a policy on the open carrying firearms in the stores or did it they just don't have it at a policy that time at the time there was an informal policy of all of allowing open carry but to approach or work to not not to approach customers who are open carry so if violate your policy right rice may have been he would have been at an at most an agent a kroger if we go down that road just so we're clear your honor this is not a second amendment case from the city's perspective this is a criminal trespass case and there is no clearly established constitutional right to remain on private property when the owner has asked you to leave this is private property this is not public property let me let me ask you on the lawyer in the end what's up a second amendment side for saying if your only evidence in the light was favorable to the player they asked him to leave because he was carrying a firearm correct i don't know that to be true i know that the firearm was part of the totality of the circumstances behind asking him to leave he was originally asked to place his fire in his vehicle and come back in and shop because according to mr rice he didn't like the way mr dressler responded when he first approached what is going to be a hypothetical that will be easier so what if the officers could determine if someone says arrest him for criminal trespass because he did x and the person says wait a minute there's a sign that says i can do they go look at the sun the sign says they can do x are to arrest or officers that are arresting him without probable cause and i tell you why in this particular situation we are on private property when a owner of this private property has asked you to leave because a jungle shark bay and you're wearing a red shirt whatever reason their past usually when they ask me to leave because i'm asian can they ask you to leave because your age and that i mean now we're talking about racial discriminatory reasons for which you could sue the store but we're not talking about where the officers arrested me because i went into kroger while being asian and they asked me to leave because i'm asian and they say we want him arrested because he didn't obey our order to leave the store no i don't believe they can do that and they asked me to leave because i was no but however they can ask you to believe they can arrest you excuse me if they believe that there is going to be a threat of danger if they don't take action so would this court need to understand this this wasn't just a situation where he was arrested because he was on the property i'm sorry but what you are saying is the private business can exclude anyone for any reason and we both agree that can't be the standard it can't be a racially based reason so perhaps i'm taking a little too far when i say that what i should indicate to the court is they can ask you to leave and you need to leave can they violate the law and asking you to leave absolutely not but in this particular situation where and i'm only i'm representing the  city comes the plainest facts are viewed in the light was favorable to the client and so if we do that the plaintiff's allegation is they're violating ohio law and my rights when they asked me to leave and we both agreed that because your rights are protected can't violate your rights in doing so the bats a problem they were first of all they were if they weren't violating ohio law second explain that to me because he law doesn't indicate state law and so they're not in one thousand nine hundred three action would not be appropriate if he's claiming that his right was violated under nine point six eight but but that could be wrong right because probable cause is the here it's state trust pass and so the probable cause is under state law and so you look at state law whether to see whether it's a state trust you do you do look at state but that but in this particular case he's bringing a federal lawsuit indicating that the court that the police officers violated nine point six say without would indicate to the core is where is there a clearly estab d law in place for police officers to know or for any layperson to know that a private owner does not have the right to exclude someone from their private property with a gun if you the officers respond and they encounter mr rice who said i told this man to leave and he won't leave mr rice is standing there not leaving and he's arguing now you've got two men standing there with a gun what is the police going to do at this point leave the district court's pointed out if the officers just with a said well you know hey i don't know what progress policy is so i'm leaving and there would have been a shoot out now the officers have have to explain why they didn't take action so i'm standing here for the court to consider that the city defendants have qualified immunity because there was no clearly established law in place that would tell them that this business owner did not have a right to exclude mr dress thank he lied to the police officers about the police officers agreed with him even though they knew it was a lie and then they turned around and arrested him knowing that if they knew what was there he was allowed in the store open carry he told the police officers they weren't allowed he wasn't allowed in the store now i do want to mention the last argument that was made dealt with private property not a business owner ohio has very clear laws case law on business owner by deeds and by lady revoking big business invitees and the issue of whether mr dressers walk quickly this united states supreme court cases quickly is an incoherent and on particular i suspicion hot it is not enough for to claim somebody suspicious because they do something that that's not what the they had to be doing something in a quality case it was the talked about being bought he wasn't violent he was just somebody perception of him that they thought maybe he was watching to quit i also wanted to point out th can't do that in violation of the law and when they did that invalidation one point six eight that doesn't apply to them anymore and if you look at the case law that stated in the brief dealing with this invitees you don't have an absolute right in the state of ohio to tell somebody we don't like the way you look we don't like the way you're acting there's got to be some kind of law lesion of the law there's got to be some kind of violence there's got to be some kind of going in some area where you're not supposed to be and that sign is under the law if this is an assault and does not want somebody in the store with a sign he's got to put up a sign it's not irrelevant in fact the sign it was up specifically tells you that we are allowing open caring but you can't come in if there's wine tasting going on and  stretching things a little bit here well when i read when i read one point six eight i don't remember specifically what it said that it said the person who is cannot be restrained from anything unless it's required by i believe that statute says that you cannot be told by anybody you can't carry a firearm unless the statute says they can tell you then what is the language in the statute that yours claiming it says i don't have it right at my fingertips but i when i read it it made it clear to me that a person with a firearm can go anywhere he wants to as long as the law allows it and nine point six  this morning the case will be submitted that completes our or argument calend