head there are four issues that are raised in this case to relate to the legal arrest one under federal law one under state law there's a st amendment issue regarding the taking a video camera and there's an issue under the th amendment as to whether or not mr crocker was punished by been places and on ventilator car during the time that he was waiting to be taken to the jail there was no arguable probable cause to arrest either under federal law but under state law doesn't matter under state law the question is did the offense take place in the presence of the officers and there's no evidence of that we start off with the assumption and the law that the person opposing the motion is always entitled to every inference and in this particular case there is simply no evidence that at the time mr beatty made the arrest that my client had violated any law whatsoever furthermore there's no evidence at any time until long after the arrest about whether or not there was anything in the pres does not point out anything in the present and in his brief he specifically does not argue that mr beatty saw all or heard or smelled or whatever else a lot of other sensor is committed a crime so let's say you have a law that you have a secure governmental facilitating a defense then and no one is allowed to enter that until an officer comes then there's someone inside the facility the officer didn't see him enter  there's no crime in the inn in the us for in the presence of the officer the other case which i think is hoarsely and i may be wrong about that but there's a case involving somebody who puts on  everybody knows that that's true but the court of appeals in that particular case said that because you didn't see any body put the tiger on the vehicle that again there get there because the officer didn't actually see the person physically walk that person would have committed the violation that's correct that is correct that the statute basically this and the exceptions let's see here on the grass next to the median is not the same thing as saying that he's walking on the median he could have just gotten out and we get back to the fact that there are at least not are ten other people at the same position so what is it about mr crocker that gets him arrested the answer is fairly clear the officer says i want a video camera and he takes it from the ok i'm not going to tell you that they were each filming exactly the same thing because i do not know and i don't think the record shows that but there are certainly six or seven other people filming that same time  think he comes out and says that they were taking pictures but certainly mr crocker's affidavit does say that there were other people taking pictures right thank you so this is just news and can i ask you a quick question you said right  is that he doesn't say that he drove the car he said he said basically i'm willing to leave which i interpret to mean that he would get whatever the person which could be interpreted to mean that he would catch whoever the person who drove him now i understand that there's no person who drove a but whatever the person drove them to leave the point we're talking about those that were entitled to an inference and again there is no inference to that effect read in light of of beatty's deposition testimony quote i assume that he was asked did you ask him why he was there no i did not so all we're talking about is baby's assumption real quickly because  don't have a couple minutes i want to talk about that the putting him in in the in the on ventilator car i think the big the big big big statement is it's not meant to be comfortable and  so and the court ruled on it under the th amendment the problem was that the court applies an th amendment standard yeah and i thought i said i sent a case cite to the court earlier last week circuit case where actually they did it this is back in one thousand and eighty and they didn't realize how far the if amendment went where the court did hold that under certain circumstances putting somebody in the car like that could be an  in order to grant qualified immunity to deputy beatty on the th amendment unlawful arrest the court need only find arguable probable cause or probable cause for any offense under florida law we have argued at least four to walk upon a limited access highway it's undisputed mr crocker was standing in the median of i ninety five when deputy beatty observed him and ordered him to leave mr crocker had no right to be in this location at that point and admittedly was not rendering aid but taking photographs with his cellphone and clearly based on the undisputed summary judgment evidence qualified immunity was correctly granted on the th amendment unlawful arrest and argues objective reasonableness test should have been applied and relying upon the supreme court case in kingsley however the kingsley case does not clearly establish the rights of an arrestee before arriving at the jail even so the application of kingsley does not change the outcome of this case the district court found the plaintiffs th amendment claim fail because the plaintive could prove he suffered only demand injuries during his arrest and not that they are to prove the intent to cause harm to us regardless of whether we applied the standard in king's only or the th amendment the plaintiff claims fail and that is looking at what the elements that are going to be necessary in either th or a th amendment violation depending on whatever standard you still have to show that there is more than a demand of miss injury that was sustained by mr crocker response to the kingsley inquiries subjectively reasonableness and so his subjective intent really isn't part of an objective reasonable analysis so i can't really tell you in terms of and in test that there would be a purpose for turning down their conditioning if that's your question my question is what was the permissible purpose served by your client intentionally turning off the air conditioning should do if you're looking at it from an objective standpoint his intent or purpose for doing the hot car is not part of the analysis so this is just news to me it may be th and judge martin are talking sort of across one another you might be hearing her when she says purpose to say something about sort of cracking open the head of the officer and psychoanalyzing him i think also he means that like what was the justification the objective justification well again he was being placed on the back of a patrol car because he was under arrest so they just acacias putting him in the car to transport him to jail now as far as turning off air conditioning i don't know that there's a justification for turning off air  conditioning in terms of the final issue as it relates to the st amendment claim i would simply point out to the court we believe again that the district court judge correctly determine of the right to photograph police in terms of or not initially when police st responders because that's what really what he was photographing by the circumstances under which mr crocker was doing so from that serious scene the circumstances under which he had a right to photograph that scene without being subject to reasonable time place and manner restrictions had not been clearly established case it is not on orders or on particular point with what the circumstances were in this particular case and that's the best explanation that i can give you i  beatty mistakenly believe you had a right to take it under exit circumstances as evidence of a crime and that's what he told mr crocker at the time you took took the phone away from  and unless you have any other questions i don't have anything else and that's the case about open containers and what happened in that case was one officer saw the person carrying the container but he didn't know that it contained out the hall and the other officer did not see him carrying but knew that it contained outcall and the court in that case held that it was not within the presence and i think that's very significant and light of the fellow officer rule which to me might have led to the different result but hoarsely it is a case where they specifically did not find that the alleged crime was in the presence of real quickly he talks about the minimus injuries but you're not required to show bruising to show an injury under the th amendment and justice palace concurring opinion was a strip search and surely there was no bruising from the strip search so i think it's back to you know what is the purpose and when the nd circuit which had been cited by the the circuit and i apologize i can't remember the case that the circuit cited it but you make a distinction between physical injuries and emotional entries and there's none of the law that you're talking about regards emotional injuries as to minimize ok i am not saying that he had a physical injury it would be ludicrous to say that he had a physical injury i mean he said that he was sweating  and and that sort of thing but it would be ludicrous to say had a physical injury but there's nothing in the circuits precedent that i know of that says that or emotional injury if you have even an emotional injury by itself s you're a hardened criminal and you're used to it your honor like anything else you know that's up to the gerges determine whether or not there's an emotional injury and i'm not quite sure that juries are as liberal as you think where the car is hot and you know five minutes whatever air conditioning is not working none of that optimal you don't want anybody to be uncomfortable but the i guess the logical extension of your position is any time that so the question i mean the jury is the one that makes the determination whether or not the car was overheated for an excessive period of time it's not it's not unusual it seems to me that a car being overheated for an excessive period time causes real injury it's not just based on the idea oh i suffered injury i mean because what that is basically is going back to one hundred years where people didn't have emotional distress cases because everybody right thank you very much for the presentation