reasonable jury to conclude that officer burnett did not have probable cause to stop arrest and prosecute mr gregory that he did so in violation of the fourth amendment and that he did so in retaliation of mr gregory expression of criticism of officer burnett for harassing him previously that's why he had a video camera installed in his truck because officer burnett had previously stopped him and harassed him with no legal reason that video is a part of this record  d we've included screenshots in my brief but i would encourage the court to review that video and i actually have it cued up at one point with your honor's permission one of the issues that this turns on is whether or not mr gregory was operating his vehicle at the time that officer burnett actually approached the car we could actually see whether or not mr gregory was wearing a seat belt at that point in time shortly after that a few seconds after he approached he sees mr gregory when he ordered him out of his truck open the door ordered him out of his truck and said if you're going to point your finger at me i'm going to take you to jail they reminder bell for the keys in the ignition begins to ding and i actually have that cued up if i may play that for your hono s we've seen the video wonderful really need your time no no your honor if you've seen the video you hear the bell and the reason that so important mr gregory testified that initially when he saw officer burnett he wasn't sure that was officer burnett under questioning by officer burnett's attorney he was asked did you know it was officer burnett he replied i thought so because of the car that that's the same car that officer burnett used when he had illegally stopped him previously so mr gregory on fred gregory lane which is a public road there was much made of that it really has no bearing on this case because officer burnett did not have probable cause to stop mr gregory for a traffic citation whether it's public or private he lacked that probably hard to stop him he stopped him after mr gregory had it since mr gregory saw the car he stopped his car before he got on the main highway which was levi branch ro so he was still on friday gregory lane and the pictures are placed in the brief that are part of the record before the district court as well the reason that's important if you look at those photos your honour's mr gregory measure he was sixty five feet away the officer was from mr gregory he could not see is mr gregory turned off the engine at his truck turned on the video took office depot turned off the video turned on the video in his truck and officer burnett put his hand in the windshield of his car to wave mr gregory on to levi branch road from gregory fred gregory road the reason that's important there are two homes on fred gregory road mr gregory's home and the home of his father officer burnett gave lots of reasons for stopping himself in the middle of a public road and one of those reasons he gave was not that he saw mr gregory where not wearing a seat belt because it was impossible but he said he stopped because mr gregory was blocking a public  saw that and i think it was offensive and i think that the police officer was totally out of line now we have to the lies this from a legal standpoint i do not understand why you say there was a stop mr gregory was stopped he chose to stop himself the police officer walked over to where he was i don't think there was anything unconstitutional about that you can walk over to his stop vehicle at that point he sees he's not wearing a seat belt and to me that is a problem that you have the what he needs is probable cause to believe that he wasn't wearing his seat belt and if somebody is not wearing a seat belt they can come up with all sorts of explanations but the officer is allowed to rely on what he sees so i would like you to explain why it was a stop why walking over to him is a stop and why at that point he's not entitled to look and see whether he has a seatbelt on or not the reason that it's a stop is because he pulled his car this is the second encounter the first encounter the police officer stopped in the middle of levi branch  out the second stop he pulled about ten feet away and pulling up next to mr gregory is a stop mr gregory submitted when he saw a man leave by branch road he submitted he turned the engine of his truck off he had no reason to pull in to the position ten feet away when he walked up the reason that there's no violation there mr gregory was not operating his vehicle his vehicle had long been stopped he was not operating it mr gregory testified he had no intent to operate it because he felt like that he was afraid to move people like anything he did officer burnett was going to arrest him or stop and they permissibly or harass him as he had previously let me ask you this so the officer pulls up next  anything at that point preventing mr gregory from putting the seat belt turning the engine on and driving off yes he was afraid that if he did anything anything at all that the officer would find some sort of infraction and indeed that's what happened well but so your submission is that he felt like he couldn't leave but there wasn't anything keeping him from leaving yes the officer m follow him down the road turned on the blueline stopping the question is is for fourth amendment purposes is that a stop yes your honor it is in effect in the sixth circuit we require probable cause for some sort of traffic violation to pull  someone over you can't just pull someone over because you want to over do you have any cases that say that if you walk up to a stopped car it's a stop he didn't put his lights on he didn't exercise anything he never told them to stop in fact he told them to proceed so where is the stop the stop would be when he pulled along when he was ten feet away because he was in the police car because he was a police officer he'd previously who asked mr gregory before him pulled him over when a police officer pulls off the road ten feet away from you and walks up to your car i would say a reasonable jury would conclude with the facts drawn most favorably to mr gregory that no one would feel free to leave and mr gregory testified he did not feel easily he didn't feel free to back up go forward he sat there afraid to move so he didn't have the intent to operate his vehicle once a police officer a car pulls next to him the police officer gets out and walks up and you know if it were a traffic stop if it were about a seatbelt violation well it certainly exceeded the scope because he could have given a citation and gone on his own way but that's not what happened to mr gregory said you're going to stop harassing me it is officer burnett that pulls up in the door and says jump on out of here if you're going to point your understand it was until he was right next to mr gregory when the vehicle had long been off the reason that so important he takes the license and actually put it behind it tended window and says on the video look this is so dark i can't see it so all of that testimony about i saw him without the seat belt at sixty five feet at ten feet is completely lacking in credibility constitutionally that it doesn't matter right we know that the case is say it doesn't matter the reason that that's in the brief and the reason i'm discussing it is the district court talked a lot about that the district court turned this whole case on the seat belt it didn't address disorderly it didn't address menacing now the county prosecutor looked at the video and said that there was no crime committed and one thing i think is really important i believe that officer burnett's attorney put in his brief that perhaps there was some sort of concession when the county attorney dismissed the yes and the county attorney i ask him please show me a document in this file show me anything that mr gregory made any concession at all to get this agreement he says there is none also which i think is really important i asked him was this about getting a conviction or whether he saw a crime he even testified he said it's a video that incriminated mr gregory i could have used that to prosecute him and the question was i'm not asking you whether you have enough evidence to get a conviction i'm asking you did you see mr gregory commit a crime of disorderly conduct on that videotape answer no there was no crime committed your honour's mr gregory was arrested because officer barnett did not like that mr gregory was expressing his first amendment right to criticize him to point his finger at him and you know to express his dismay that he had been pulled over previous times and how many citizens who have video cameras in their vehicle what do separate from the retaliatory arrest when there is supported probable cause in reichl there was support of probable cause in mr gregory scase there is not so the case considered not the criminalization of otherwise protected speech rather it looked at the scope of the first amendment right when the retaliatory motives lead to an arrest that is independently justified by probable cause and your own as we do not have that in this case the reason there is there was probable cause to believe that he committed the courts look directly at what is the intent for example officer burnett argued in his brief that he intended to take his granddaughter to town well that was what he had initially intended until he saw the police car that's why he had the video in his truck he didn't intend that anymore he roadway and so you've got the argument that mr gregory was stopped or unlawfully stopped in a public roadway and that would give yet more reason whether we want to call  reasonable suspicion or probable cause or for officer burnett yes it actually cuts the other way and the reason it does if you look at the photographs there were two homes on friday gregory wrote no one is coming friday gregory wrote and they're there to see mr gregory or his father that's it even had mrs gregory he was there at the scene we took her deposition was he blocking anyone in that road were you trying to get out was anyone else trying to get and of course the answer is no no one is going to be on friday gregory road unless they're coming to see mr gregory or mr gregory's father the public road is levi branch road that's the road where officer burnett and he testified t his deposition no four way stop no stop sign a police officer stopped dead in the middle of levi branch road you understand a motorist could come up behind him he didn't have this lights on and when he was with levi branch road there could have been an accident there could have been anything he at the time when he had the interaction but it makes no difference they could have happened on levi branch road there was no probable cause for this stop arrest or prosecution didn't matter but it it cuts against officer burnett's credibility when you make such a huge build and not probable cause on anything else which leaves the malicious prosecution the elements for malicious he experience based upon the the disloyal disorderly charge that he didn't experience solely on the seafield charge the seatbelt could have handled be handled he had a restriction on him when you have to come to court on any type of legal matter it's considered to be a restriction on your liberty for example justice ginsberg explicitly recognized in albright that officers bay violate the fourth amendment by perpetuating an unlawful seizure in their power to dissolve probable cause i ask the county attorney did offer to burnett come and say you know i was really mad at this guy been harassing him i didn't have probable cause i'd like to dissolve this case i asked the prosecutor what would you have done and he said i would have probably dismissed but that didn't happen any time he was held in jail for like four hours and forty one minutes and went to court at approximately two or three times in a restriction on liberty court even a short time in jail i every issue that was raised today must by miss popplewell came close to the page in the word limit so i don't want to just rehash the brief so we believe the district court ruled correctly however we believe that we've raised other issues for alternative grounds to support the war to qualified immunity and dismissal of state law claims and i would first like to just ask the court if it has any questions well that our position question yes ma'am so it looks like this guy behaves as he behaves in this tape that we have and he's rewarded by being promoted to captain is that is that what i have this is your opening argument he's a long tenured well police he has no disciplinary history i'll tell you it doesn't say much for have you seen it yes ma'am it doesn't say much for the town that he was promoted and i must say why why should the state malicious prosecution claim be dismissed the state well malicious prosecution claim he dismissed judge it's a it's a little unusual in this case because they took the county attorney's deposition with the court record from the bell district court we put in the record there is clearly an agreed order of dismissal that was testified to that mr gregory's counsel signed he prepared submitted to the prosecutor and they signed our position is both under federal and state law it has the same element malicious prosecution would have to have a favorable terminations and the law is clear in kentucky and there's six circuit cases that echo that from out of kentucky that agreed compromise cannot support and we don't know what's behind that we have an order that's all we don't know whether there was a compromise behind that the order itself is a compromise your honor people do that all the time well plead reman stipulations of probable cause i mean for instance you could if you take the position with that than any court order could be you know questioned or set aside there was no there's no issue in the record from the county attorney there was this attorney was not questioned his defense attorney i know but we agree haven't established as a matter of law that there's no genuine issue with regard to whether that was the result of a compromise and agreed order  compromise i disagree i think there's a case that discusses that that remained it to find out if something really was a matter of compromise what the prosecutor could have called him and said look i've looked at this this is a big mistake i want to dismiss the case please sign an order and he says sure we don't we don't know i'm not familiar with what case you are citing out of kentucky but i believe in this case i'm not familiar with the one that you're citing to but as far as i'm as far as i'm aware the case that caster not case which discusses you mostly most recently states in that case that case was dismissed by unilateral motion of the prosecutor it states in there the defendant didn't have to agree into thing and in fact did not in this particular case there was a signed order and there was consideration for the order because the seatbelt offense was dismissed in kentucky a person has a right to a jury trial for even a violation so mr gregory did get a benefit of the bargain sense that the state will charge went away along with the disorderly conduct charge and he didn't have to stand trial on that input to face a potential conviction for that and have it on to his on his record so there clearly is consideration and that's discussed in mr nuns deposition and what it what is your position that is your position that there was a probable cause for the arrest based on the seatbelt violation our position on that is again officer burnett did not arrest mr gregory offense that was charged was a disorderly conduct in the second degree however as the district court noted and we argued that district court for federal constitutional purposes after city versus that at water versus city law of vista which was a seat belt case which of all of us supreme court which was a rest will fence in texas they said for the fourth amendment it's satisfied as long as there's probable cause for any offense being committed regardless of what the potential penalty is under state law so let's hear so our it is your answer to our position is that there is no fourth amendment false arrest claim in this case because there was probable cause for a seatbelt violation regardless how the court comes down on our qualified immunity arguments on disorderly conduct and missing and the plaintiff did not plead a state law claim related to false arrest so what any argument  point he drives up pulls off to the side gets out and it's clear from the video when he walks up that he does not have the seatbelt on he setting in the middle of a public art mark roadway has been seen driving up to the point the officer approaches it's clearly doesn't have a seatbelt on the officer ask him about it he doesn't say i just took my seat belt off he says i'm on private property so all that together a totality of the circumstances is what the officer was faced with inspire the backed up by the video if there car took off a seatbelt and adjusted the camera in the car so that it would better capture in his view the events right around where he was sitting so that he did take the seat belt off but it had it on initially that's just an estimate so i guess my point is this you know where it are we're not at the stage here where we have to take all you know  facts and reasonable emphasis in favor of the now moving party who would be mr gregory and mr there seems to be dispute in terms of what happened in that two three four minutes span of time our position is from a qualified immunity standpoint there's no dispute that he drove up to the point where he first at the end of friday gregory lane where he first saw lieutenant burnett out on the highway there's no dispute that when lieutenant burnett approaches him he doesn't have a seatbelt on he still sitting in the middle of a marked roadway does not tell the timber net when he asked him about the seat belt that he had just taken it off there's no dispute that he got them so your position is when officer burnett is out and levi branch road he can see that at that point mr gregory does not have a seat belt that was less than a protest testimony and he also testified he saw him drive up to that point and then when he pulls up  side him and gets out before there is anything that would even implicate the fourth amendment he walks up to the car and it's clear at that point he see doesn't see that he has a signal to say mr mr gregory's version is that he had had it on and he came to a complete stop before he did now who's either either we have to accept that for purposes of summary judgment or we have to send it back because there's a dispute of fact as to what happened in this case our position is even if you take the facts in the light most favorable to mr gregory a reasonable officer under those circumstances still could believe there was probable cause because he saw him drive up to the point he comes up to him he's still in physical control of a motor vehicle in the middle of a marked roadway and it's clear at that point he's not wearing a seat belt he questions him about it he offers no excuse up a tory account for the officer to consider in fact he says to him twice you're sitting here not wearing a seatbelt mr gregory never denies it so the undisputed facts of record for qualified immunity i not whether or not you all may at the end of the day agree when you've seen everything that he had probable cause under the stand point but whether or not a reasonable officer would believe under one hundred twenty five with what the officers observed and where the car is located when he approaches and it's no we would not cite somebody for a seatbelt violation on private problem it's been here your view is that this is a public thoroughfare yes and the officer test or the officer states on the tape when mr gregory says i haven't got on the public road i'm sitting on my own property he says well no you're not this is marked roadway you're not wearing a seatbelt and mr gregory doesn't dispute that he just wants to argue that he's on private property if it is and i mean to say this if it is public property it's pretty obvious that the reason it is because somebody had to pay for that bridge on which he was sitting number one and number two a marked road means nothing any more they're marking dirt roads for the for the emergency  nine one one people and so everything's marked i don't know if i buy that your honor if i get a federal s s l the a t f can come and look at my house anytime they want because i'm regulated business when the county taxpayers pay for a roadway and there's a green sign put up the officer we've we've put undisputed testimony the records of this into the fact the county maintained a publicly owned roadway but even beyond that for qualified immunity part of this is an officer but for purposes of what we're dealing with it's clear that officer burnett did not enter private property and even if he did even if we just wanted to pull up and talk to somebody consensual encounters the commonwealth versus king for versus  lieutenant burnett testified he did not believe he was wearing a seatbelt he didn't effect a traffic stop at that point he pulls up a side of him gets out and walks over and clearly observes that tommy is not wearing a seat belt says as much to mr gregory on the tape that's not  explanation was offered mr gregory offered testimony that he can take that he was continuing going continuing to continue to operate the vehicle and go to town and he was still sitting in the middle of a marked roadway here posing council says that he could just cited him for not wearing a seatbelt at that point why wouldn't he have done that well because he elected to arrest him for the offense as he stated on the tape but again for purposes of the fourth amendment those are like this orderly conduct that in our in our fax and also from his deposition as to why he liked it when he got to the jail to change it to disorderly conduct in the second degree our position is though factually is he would be entitled to qualified immunity because the facts that he was presented with that aren't in would give a reason why officer believe that either one of the charge that no reasonable officer could have thought that they had probable cause to arrest or charge him with disorderly menacing or anything other than a seatbelt violation where does that take us on the malicious prosecution claim our position is is that because there was probable cause is the district court found for the seatbelt violation in the both of those were district court offenses it didn't change the court we didn't like take it through a felony level or send in the circuit court he would have a title to a jury trial and either one of them that the malicious prosecution fails for the reason that there was probable cause for a seatbelt offense however our separate argument as the courts indicated as an issue with is that because the case was resolved by way of greed compromised it did away with the seat belt offense he can't satisfy the favorable terminations element let me just ask you this he was put he had to give a bond i think he said it was an award bond i'm not sure if he had to post money or was just released on own recognizance i don't want to state one way or another the court on that he would not have had to do that for civil infraction right to the arrest under the fourth amendment as long as there's probable cause for any offense even if it's a not i wrestled i simply the significance of that concession you keep saying that but i don't know if there's probable cause for the seatbelt offense he can't win on a fourth amendment claim for  that's right so i don't know why you but he can't he can't win on it for paul's arrest but there was a separate prosecution for disorderly conduct true which it's at least a question of fact whether there whether any reasonable officer could thin there was probably cause and so your response to that you have to one it wasn't dismissed and the other was it wasn't i'm sorry it wasn't it wasn't her it wasn't terminated in his behavior yes under the restatement of torts for malicious prosecution which the federal courts look to as well it is clear that you have to have a terminations on the merits in your favor to proceed with a malicious prosecution case from the seatbelt i don't know how many times he would have had to go to court to set up a trial if you again under kentucky all even for violations you're entitled to a jury trial so he could have gone and had a pretrial with another trial date set even if he was only facing the seatbelt offense not something that can be resolved in traffic court in front of a judge if you want to but if you want to you're a child you're entitled to it just like you would be for the disorderly conduct so i can't say for sure how it might have proceeded different  district if that was the only charge but it's clear that both of the charges would have both been resolved in district court in that he would have a jury trial right on both of them i'm out of time your honor ok but  wrong but he has no measurements of his own that he was sixty five feet away i ask officer burnett why would you wave a citizen onto the road that's not wearing a seat belt why would you wave them onto the road well that time it comes up and he stopped and motioned for him to come out and i actually see about the seat belt he's up there right at the intersection before he turned on to leave my branch route and i keep asking to someone have to stop at an intersection can you just pull out into traffic would you expect someone to stop and look both ways and his response was yes i would and that goes against the whole argument that he's blocking the road and somehow that gives him probable cause to go over there he says i motioned for him to come out he doesn't then i go over to see if he has a seatbelt on he goes over that's when he can see you doesn't have a seatbelt on not at levi branch road but when you testify both ways obviously that cuts in mr gregory's favor and that should be viewed in the light most favorable to mr gregory in closing your honor fourth amendment rights are not second class right former justice robert jackson recognized in his famous dissent in brinegar which we've looked at for the memmott law that much of that has been adopted now and one of the things that that justice jackson talked about is we must remember that an illegal search seizure is usually committed beyond the court supervision and it's limited only by the judgment and by the moderation of the officer we must also remember that the authority to conduct a stop arrest and prosecution may be exercised by the most unfit and ruthless officers abusing their authority as well as by the fifth and responsible so the fact that he's going on about his own business he's every man he's every woman he has all of us he stopped at the end of that road he should have been able to go on about his business