barely now you're on i'm getting a message this says you can start your video because the hostess sto arroyo who challenges the denial of his qualified and legislative immunity defense to a civil rights claim alleging st amendment retaliation this is a classic qualified immunity case for a local municipal official who stands in a policy making body not an executive function authority the ma e judge in the report and recommendation at issue in this case docket entry ninety nine that was adopted by the district judge that became the order found that commissioner corowa was acting in his discretionary authority and i point out to the court docket entry ninety nine page twenty one and i'm quoting therefore in his arden reporting and investigation of potential code violations as a wedge corrado was acting within his discretionary authority under the qualified immunity doctrine  asking questions to elicit information that's what that's about in a sense your honor here is why the complaint is insufficient to overcome the district judges determination that the actions were within the discretionary authority and i note your honor there is no cross appeal on that finding by the district judge by the magistrate does not mean we we've got to determine what the district court properly understood that question of course judge and the nd aspect is in relation to the policymaking function of the city commissioners not executive agency the city commissioners conduct was in the nature of fact finding for purposes of enforcing the quality of life in his  allowed to be taken so for example directing or making inquiry to the code enforcement director i think there's a violation of health safety and welfare at this holiday party and the code director having his subordinates take action issuing code violations if found or conducting an investigation is an executive branch function department director to go to a location to determine what is happening is in fact authorized at no time is there an allegation that commissioner directed any official to issue a citation or arrest somebody shut something down it was for the purpose of seeking the information that had come to his attention that is precisely what is allowed by a commissioner who has no authority to execute the laws or the authority of the municipality so making inquiry in the form of seeking information to determine what is happening is precisely what is allowed within the city charter precisely what commissioner croyle is alleged to have done and as pointed out in the complaint commissioner chorale you did know could lose a recon docked that was outside of his scope of authority merely the initiation of inquiry or his own inquiry walking around the commission go into tenants trying to find out what is going on since there is an absence of any allegation which goes to the plausibility kron that commissioner corojo acted in excess of his authority as a fact finder and policymaker the complaint is simply insufficient to a stablish the plaintiff's burden once the judge has found this was within his maraud discretionary authority and as the court knows the purpose a commissioner's actions is not a factor in determining if the commissioner of the policymaking authority is acting within his or her discretionary  harbor case cited in the briefs so in applying this the court uses the holman minow mom level of generality is  cond of making inquiry by seeking fact finding as opposed to couldn't clues or accusations within the commissioner's authority it is and because there is no direct connection to the st amendment claim remember the only st amendment claim comes pre election the allegation that the plaintiffs supported commissioner corone no single allegation while commissioner corowa who is a commissioner of the plaintiff's exercise of their st amendment expression the magistrate judge in the district  was in correct in pune clued in the plaintiffs as stablish their secondary burden to show that commissioner corrado did in fact infringe on  their st amendment rights and of that most importantly that infringement was in clear violation of known law we have pointed out in the briefs that at no time has have the plaintiffs cited a single case that is factually similar or even related least similar involving a policy making authority the police cases involving this looks a lot like the your honor v bennett fee hendricks case is a classic law enforcement police harassment and executive branch agency where those executive branch officers are permitted and can in fact enforce authority issue tickets make arrests those cases are plainly distinguishable from the policymaking  of municipal legislators which is what commissioner quraish is we've also argued legislative immunity applies because all the aspects of commissioner roy a legislator or rather was acting as a self anointed sheriff in violation of the miami city charter in doing so to harass intimidate and destroy the business of the plaintiffs solely because they have supported his political opponent happened before he took office and then the retaliation took place after where the nd one was filing an ethics complaint in march three or four months later which yes absolutely let me let me just say that this case is about as straightforward as you can get the court can simply adopt its opinion in bennett or bailey and that would answer the case the only difference here is as mr cuny pointed out is that commissioner corona is not a police officer and was not acting with a discretionary authority of a police officer here he is a commission and as the court focused on his role is limited and i'd like to take a moment to look at the miami city charter because because mr cuny said that except for purposes of inquiry he may not give orders that's not what it says it says except for purposes of inquiry he's shown deal with the administrative service solely through the city manager it goes on to say that he may not give any city charter and shall be he should be held criminally liable and could be removed from office that is a very strict limitation on his discretionary authority and your honor if you really big complaint  which i've had the pleasure of reading again in the last few days it's amazing the pleasure of raiding your writing once in a while i did some things some things right but if you look at this complaint and the allegations in there there are so many details factual allegations of city officials testifying stating that it was commissioner coroneos that was not only giving orders but was in fact harassing calling them at the middle of the night saying get out there and when they fought back he was arguing with them these city employees were afraid they were intimidated into doing his work and so to my concern is that complying that you are now saying they did not qualified immunity to husband miss help me with this it's gone we have  is targeting these individuals unlawfully and we added more detail as to damages and the reason we've got none of that would be before us because that was not before the district court when it did not qualify correct correct just a moment i think it's important to read the whole charter to see where it where it outlaws the action it issue here and then to compare it to the complaint where we discuss in detail the allegations where many many city officials you there testified under oath or told mr fuller that this was these were not only orders by commissioner carajo but they were actually for the purpose of political payback and retribution so that's what makes this case somewhat remarkable if you get when you know once you look at this whether he's acting within his discretionary authority or not i think you have two cases to look that sort that's exactly what happened in this case you can compare the allegations and they are you know not identical but you can't see any light between them the owner again the only difference being that this was a commissioner not a peace officer be you know the significance of these cases is they hope you know clearly an expressway that this form of retaliation is a clear violation of the united states constitution and they said it was back to nine hundred and ninety eight that this is been settled law and since nine hundred and ninety eight you had an excuse you had to bail a case in when we when we look at the other cases around the country i mean every single circuit his health that this is this is clearly established this type of conduct there's no argues that there's no knowledge should that this could possibly be a travel yes your honor then the case was definitely been expanded to be additional allegations duck i'd like to close just by saying that you know this really is an important case because any any order other than an affirmative the district court is going to result in people being afraid to produce debate in politics and we want them to participate mr fuller mr finney a has been in miami a long time and they were afraid to to outwardly support alfy beyond because of commissioner cruz reputation for political retribution they hosted these rallies and they did it surreptitiously and but it was on their property so the commissioner commissioner knew it was then and then he found mr murray found mr penny a at the property called him and he challenged them and this is the exact type of conduct that if we cannot  our democracy we need people to be free to support the candidate that they choose without retribution from elected officials i think we understand your tastes mr scott you say minutes  it was it was a fluke i mean she dismissed the case there's no doubt about that and tell them the refile but it was largely along the line mr dudgeon said it was basically to clarify damages and things like that because there was a question about gudgeons interpretation was correct but we took the appeal because we had to he amended the blank he had to and then the court stated and that's why are up here but the major part of this is on the amendment was on finding out the damages and things like that because it a very unclear and it had been bunched together and she didn't like that and she wanted to correct that and so that's really what occurred as i recall in the lower court mr gottlieb made the point about the dramatic effect the chil croyle was concerned with that had had complaints and this a lot of this is it documented in the documents attached like there's a commission an ethics report and that and it really does have a good possibility to what the mission or  this particular case because it's substantiates a lot of the complaints that were that really real against these particular plaintiffs and it was that reason that royal was out there to do it was to make sure they were doing it correctly on the issue of the charter i mean i think mr cheney really explained it it's our position that out of their charter he can make inquiry that's clear and inquire he made was by contacting the different people at the different departments and asking them to go out and do these things he couldn't and that he could order them to do it he could ask them to do it and that's what he did it was performing his tasks as a legislature to investigate these matters for the clients so i would say to the word that the issue qualified immunity the court found it was discretionary we don't think the law is clear and that he was put on notice and we think that qualified immunity should apply in this case thank you j