at eight minutes reserving two minutes for both honors i've given limited time i'd like to move directly into the legal issue that's before this court which is rich with respect to the first amendment claim and qualified immunity if the position of mr roberts as well as jefferson parish that the district court  as a matter of law and applying the wrong standard with respect to qualified immunity specifically it's important to note in a factual finding in this court the court found that mr his behavior at the parish council meeting was poll argumentative and confrontational and yet with those findings the court usurps and says we need to go to the subject of intent but yet the federal court as well as this circuit as and the u s supreme court have all found that the it's an objective reasonable standard with respect to the application of qualified immunity so in this case we have the record evidence in the video that everybody can review and see there's no outside extraneous facts in this case and looking at that video the court had decided that it was confrontational argumentative and it is established in the law that when you have a confrontational and an argumentative individual that the law allows restrictions on that type of speech in a limited public forum which is undisputed in this case was the jefferson parish council meeting in a limited public forum you're allowed to have reasonable viewpoint neutral restrictions placed on speech and in this particular case we have an individual that was speaking he was granted the authority to speak at a public meeting and he was allowed to go on for three minutes and twenty three seconds where he voluntary acquiesced and allowed a parish attorney to go ahead and present a different point it's important to know for this court and i think lost on the district court respectfully was that when mr he for his time back mr roberts who was the chair and the moderator said the words yes which means that at that point in time his speech was not being curtailed he said yes and it was only when he worked when he looked to try to determine ascertain how much additional time the individual would have that mr he raised his a document in his head and said i challenge the parish attorney and it was at that moment in time that councilman roberts said to the individual this is not the forum so it wasn't a viewpoint restriction he was saying that that that form is not the that is that form is not the type of place where you're allowed to challenge a parish attorney and that the court in the when whole decision which was affirmed found that an individual is not entitled to rebut the views of other speakers and that's precisely what christopher roberts did here he said that you may address this issue that's on the agenda but what you cannot is you cannot rebut and berate an individual that was speaking turning so with respect to this particular case because the court found confrontational argumentative behavior on the part of mr heaney it is then inconsistent to find that the law for qualified immunity is clearly established that you cannot remove and asked and be escorted out a confrontational argumentative individual if this causes a confrontation or an argumentative or do you just say i want to contradict what the city attorneys just say well i would submit to you that he was argumentative confidential and i think the fact that the district court found that to be the case to then rule that the law is not clearly established is inconsistent and also your honor is speaking to that point in the white vs city of nor work which is a ninth circuit of one thousand nine hundred ninety they give great gift discretion afforded to the moderator in making that determination as to whether an individual is disruptive or not and in this case that decision and that's why qualified immunity shields liability in these types of actions because of the potential for harassment and undue unduly burdensome litigation that public officials must have to do with stifles public debate in public forums and in this particular case i think that because the court found in argumentative and confrontational behavior he continued to speak when mr roberts said hold on a minute and was addressing it it's the it's the nature of what he was saying with respect to the forum which is why the speech was restricted and not because he disagreed with what he with the contents of what he was saying and i think it's moreover if you look at it he said yes you're going to get your time and it was only when he was addressing the forum issue about what could be addressed at that particular form and that's the whole point of a live in a poor public forum is that the moderator gets to decide what gets to be addressed at that forum and if he was going to begin to speak on the agenda item for that day that was appropriate but when he wanted to challenge another speaker that was the reason for the restriction and it's for these reasons that we respectfully believe that the court went beyond what it was allowed to do under presidents of this law and supreme court decisions on qualified immunity this is precisely the type of case that fits in to where you don't want public officials to be und burdensome with needless litigation this is a case where we're talking about a total of one minute and thirty seven seconds and we've got countless go how do you let him speak for a minute and a half we wouldn't be here to the i don't disagree with you your honor but he is given the authority favor finding qualified immunity and not not to apply in cases where it's not the law isn't clearly established so this court need only look to find out whether it is beyond  an individual that's being argumentative and combative cannot be removed from a public hearing and i would be argumentative and combative i guess my question is simply because he was speaking on something that the the person that was again to the moderator is given the op is given great deference to determine whether that civility if you look at the fair high child the fairchild decision in the white decision both of those courts find that the moderator gets to decide who guarding civility in decorum of a proceeding and again but did the councilman roberts even address this and so you can just look at the video he said the appropriate forum would be to go down and follow a lawsuit against against us if you think what we're doing is not appropriate but you cannot sit here combative again those are the words from from the district court was that he found that the nature of what mr he was doing was both combative with both combative than argumentative and that's where we find the inconsistency because we believe that the law provides when an individual in that constitutional can be placed on that type of speech and if you have an individual that is speaking over somebody's waving papers in hand in a public meeting that's the type of speech that gets to be restricted under the law and specifically with respect he wasn't saying i disagree with the block grants and saying i disagree with the parish attorney and i think that's why christopher roberts felt that this wasn't the way program viewpoint of the parish attorney well with respect to this being the forum as to whether you could challenge the parish attorney and that's where the that the disagreement is is that that he was able to speak on her grandson in fact for three minutes and twenty three seconds in fact did so and he was able to give his opinion which wasn't any different than what he would tend to do apple ladies in connection with this i to will i go into the facts and think they're pretty clear they're pretty much undisputed and i think they speak for themselves we believe that the trial court was correct when he dismissed the first amendment for the member claims against officer black his result of his escorting the stanley from the council chambers based upon the direct request and quarter of the council chairman know the seizures brief minimally intrusive and reasonable under the totality of the circumstances the judge said they did i believe that officer black violated any clearly established statutory constitutional right and he relied upon two removing a citizen the from a public meeting based upon the chairman's judgment that the citizen was disrupting the meeting requires probable cause to believe the crime was committed he went on to say that no office and blacks position would have understood that acting in obedience valid request by the council chairman to remove a citizen following an argument of exchange with a council member would violate the citizen's first amendment rights they go to someone implausible and reasonable to expect that the of the meeting of this a black would have disputed argued with councilman roberts his decision whether or not mr hanney had been disruptive combative or should be removed from the council cham he intentionally fell down or he accidentally fell down or he was pushed down i don't think anyone knows for certain what happened but there is a faction of the potential battering i would imagine are just your judge considering the judge but if part of that was during the course of ejecting him from the council chambers and it was not determined to be excessive force which it was not then i believe that it was covered from the standpoint of the battery defense and summary judgment should be granted now the negligence part may be another thing for us to address in a few minutes but i think daryn the cause of his being detained  was injured and it was an excessive force and i think summary judgment is proper we cited in our brief two district court decisions one out of the eastern district by judge lemon one out of the western district i believe by judge trumbull and basically with the courts analyzing that situation they said well if the police officers were acting reasonable in the totality of the circumstances even though they applied force if the force was not excessive force then the battery claim must fall and i agree with that judge and judge same he did not find that there was any excessive force in fact he found quite to the contrary are they called the ambulance judged to be honest with you i'm not sure who called the ambulance i think there's some dispute as to whether courts security called the ambulance at his request or whether he called the ambulance but an ambulance was called when he walked out when he was free to go and he walked out of the  building he went to the ambulance and was examined i think for several minutes and then he was released from the ambulance or he left the ambulance we don't know at this point what damage is of being related to the being related to negligence because we had agreed that discovery would not go into his medical condition and injuries until we determine whether or not there was any liability i believe if you read his declaration i believe his claims of injury result of the battery of grabbing him by the on his in his bruises are more than the falling down a falling on top of a more any negligence or those state claims yes there's this court have jurisdiction to to review those claims and we have qualified immunity which is a federal situation but these are state and where this was declared to be a final judgment so that all of these issues could be brought to the court at the same time as opposed to only dealing with the qualified immunity issues and then possibly having to come up again later and i think there was an order wasn't involved in the case at that point but that's my understanding from a viewing the record of how we got here today ok now with respect to the negligence claims judge again we believe that they should have been negligence claim it's to play in its duty to show that the defendant owed the plaintiff a duty that there was a breach of the duty and there was injury caused by the breach of that duty none of that is found in the complaint none of that is found  his statement of contested issues of fact and none of that is found in he is decoration father in opposition to the most recent judgement so i would suggest to you that is negligence claimed was likewise fall because he of the bruises on his on from his on was being grabbed by office of black as he was a schooling from the council chambers outside into the elevator into the lobby downstairs if for those reasons that there's no other questions i w corporate printer guess along with michael real men on behalf of mr tom haney like everyone else in this lawsuit we hold two positions both as apple a and as appellant on certain issues on this matter did come before the court pursuant to a rule fifty four judgment after we met with the conference attorney to discuss possible resolution in what was decided was that piecemeal resolution of this case wasn't in the best interest of had researched before we followed the motion for the final judgment with respect to judge saini and that's one of which our research concluded was that we were titled to go ahead and have the court make it into a final judgment if there was no good reason for delay just on the qualified immunity issues correct no your honor on all the the basically the totality of the summary judgment rowlings here where to go to a trial what what exactly is the ensure that your client would be climbing what would you want to be compensable well your honor we would have we would seek recovery for his deprivation of his first amendment rights who would seek compensation for the i'd like to them orders he didn't have to pay for the ambulance no no me he has to receive subsequent medical treatment however that would be part of his recovery  it for fibers not the bruises from the back injury he suffered rather significant back injury as a result of the fall if i could turn first to the jefferson defendant s request that judge zanies ruling on the first amendment be overturned i think it's important i disagree with the issue is framed by the jefferson parish issue in this case as a motion for summary judgment isn't environment for that type of determination rather the issue as i see it is the question is whether or not a reasonable jury viewing the evidence in the light most favorable to plaintiff can conclude that mr roberts violated mr cheney's constitutional rights we are green largely about the law in this matter the law for speakers in a limited form a limited public forum is this was is that they can be subjected to restrictions that are reasonable and viewpoint neutral that is the major difference here however we maintain that mr roberts has restrictions on mr hany speech were not in fact viewpoint neutral i think that's evident by the comments that mr roberts me during the course of the proceedings he begins and i think it's important therefore to look actually at the videotape and the recording  the meeting as opposed to however judge zany may choose to label these words because what mr roberts says to mr haney is if you viewpoint restriction in other words if he was going to agree with mr faucheux there was going to be a problem is that he want to be allowed to completes his comments and finishes speaking suggest that this is off topic or not the proper form but it's important to remember and you'll see clearly from the video how miss faucheux you got to the point of speaking at this meeting in the first place mr haney was speaking pursuant to the council rules in the council ordinances mr roberts interrupted mr haney you know that's a direct contradiction and direct violation of cards were in which says the council basically to disagree with mr or mr hayne and therefore when mr haney went back and was trying to say no i'm still right in this photo shoot is wrong he was not off topic he was not confrontational he was going back to his original topic which is i'm right you all something money from no big contractors as campaign contributions that's wrong that's illegal so there was no question of oh well we're going to clear there this now to be the improper form for you to challenge the power of attorney because under that scenario any chairman of the meeting can cut the speaker off real quickly all he's got to do is interrupt regardless of whether or not he's allowed to or not say oh we're here wong and then says the speaker tries to go back and say no i'm not wrong i'm all right well them speak in  chair declares them over you're out of water because they're your argument mr roberts is the one who created the argument turning to the issue of what it's earth city explanation of anywhere as to what what can and cannot be what forum and what is allowed just to be able to speak there have been there is no powers ordinances that have been a demo flight that mr haney was in violation of i mean there's nothing that says you can speak on the subject but not the subject this is awful limiter this is a proper forum this is not the proper form any type of explanation to a speaker of any type as to what subjects  be discussed before the council no your are there is a public comments or a section where you sign up you're allowed up to five minutes to speak on that topic mr haney properly signed up other people had roberts may have been viewed that as hostility you're on a crinkling that's about their son i don't i can't see how that's hostility to be able to go before your elected representatives and tell them that you think they're doing something wrong also with respect to the qualified immunity aspect of that i would point out that the law is well established that you cannot make restrictions on speakers that are not viewpoint neutral as we've pointed out this matter involves strictly viewpoint when just when jefferson defendants talk about judge zany making a subjective element i think would judge then he was actually going with saying it's up to the jury to gretna maintains that because mr pena was see is that the deputy or the officer had the right to use force against him that's strictly on just simply untrue prone criminal procedure article two twenty allows the use of force only when making a lawful arrest or a lawful the tension a lawful arrest involves probable cause a lawful the tension is a terrorist stop neither one of these factors are present here this was in fact a seizure but it was not a lawful seizure a judge zany found it to be a lawful seizure and i'm going to get to that in a moment relative to our appeal but there undisputably wasn't fall he then grabbed him by the arms he then with both arms holding both of them forced him out the council chambers and then he forced him into the elevator so there was not only one battery there were multiple batteries there was an addition to the porsche it was the grabbing of the arms because a battery is a harmful or offensive contact this is clearly without harmful in offensive contact to mr haim and there's simply no justification for it under from a supervisor but he the problem is mr roberts was in his supervisor mr roberts worked for the parish of jefferson mr black works for the city of gretna mr black made clear in his deposition and we cited this in our brief that mr roberts is not his supervisor he's done chain of command and instead he can address concerns to the officer on duty officers there to maintain the peace but and the court made reference to two cases of collison ozma where there was an instruction given to an officer to remove people the only reason those courts however granted summary judgment on those claims against the officer is the fact that those orders given by the presiding official were lawful those of those courts determined that in fact presiding officer was correct and was titled to qualified immunity and finding that the speakers were either off topic repetitious or whatever matter were entitled to be ejected from the proceedings and  more in one of those cases the plane has been the even dispute the right of the officer to escort him up as not the case here there was a motion to dismiss there was no challenge that in fact there was no challenge in their motion for summary judgment as to the next but this time for that reason we believe the way of the argument but even if they don't weigh the argument with respect to the actual evidence introduced the question of duty we don't have to introduce evidence as to the question of duty the question of duty is a question of law exuding in this case is if you've got someone in your custody you must maintain reasonably maintain hayne we don't believe that mr black intended to follow mr hanley but he did fall on him as a result of his own negligence there's also case law that we have cited that indicates failing to maintain one's balance creates establishes the three parts that we have to do to establish the neck of the spam in our role as appellant i would like to get to the fourth amendment issue because i think this is in fact the most interesting question of was presented in this matter judge zany determined that mr roberts mr black and mr haney amps are was in fact seized in this matter the gretna defendants agree with the too slow to be removed pushing him along and then grabbing him and forcing him out of the chambers that is a seizure i don't think there can be any question that that that mr haney was in fact seized by mr black based upon mr roberts instructions i think as she was not that's not the issue the issues were and there was probable cause i agree and actually your honor i would agree with you too on that because there is no probable cause we believe he seriously erred in this matter was he determined that probable cause was not necessary for that seizure there is simply no law to support that position in fact spreen court has rejected that notion in the matter of dunaway supreme court noted that the long history in the of this country relative to seizures is in need either a warrant or you need probable cause they then know ok we got to the terry situation and we're going to make a small exception because it's a less intrusive interference with a person's personal privacy and they allowed for reasonable suspicion to form the basis for a brief terry stop this was neither a terry stop nor was an arrest based upon probable cause it was however clearly a seizure and if you have a seizure in the absence of problem both arms and he's being led along he is not free to go anywhere and also your honor mr haney said it is that corporation that his plan was to go sit back then or attend the rest of the meaning so he was not free to stay he was then continued to be seen as and forced into the elevator the supreme court has to find whether that you see is the question is is the individual free to ignore the police officer and go about his business under no scenario viewing this videotape and the evidence that has been submitted in this case can anyone believe that mr haney was free to go about his business he simply wasn't mr roberts had ordered him removed i don't know how you can remove anything from anyplace without first seizing it and thinking control of it as the nature of challenge and rebut the opinion of somebody else and christopher robinson again he's not a lawyer but in his discretion that's afforded to him under the law what's the difference in viewpoint saying i disagree with someone who is indicted given your view that you council as to the legality of the the issues and what mr roberts believed and again this court and spring court of the united states and ashcroft as a kid in two thousand and eleven said qualified immunity gives government officials breathing room to make reasonable but mistaken judgments on openly legal questions and mr roberts is not a lawyer but he thought in his decorum where he was a moderator that it was not an appropriate thing to wave your paper in hand and challenge an individual to rebut their opinion and right or wrong he' given that ability and that's why courts have consistently on summary judgment granted qualified immunity in these types of cases because of the negative attributes that they have to public discourse and needless and burdensome litigation as we see in this case for a minute and twenty three seconds while he was