are speaking today on behalf of mr binnie media is the appellant and plaintiff in this matter is myself the angus lee mr beeny is in the courtroom today what we're asking the court to do today is reverse a lower court ruling granting summary judgment to the defendants on a nine hundred eighty three claim having to do with a tad i don't rastan retaliate in retaliation for mr beanies protected speech the arrest was without probable cause and it was in retaliation in reviewing the briefing and record on this matter i feel that both sides maybe could have done a better job outlining a chronology of the timeline of events here that really help frame all of the issues and so if the court would allow i want to spend about one to two minutes just hitting the high points of the timeline in this case mr beeny became aware of a man by the name of gary smith who was arrested by vancouver police department detective sand he believed mr smith was at least partially innocent or completely innocent of the charges on april first of two thousand and fourteen he sent one e mail that e mail did not contain a link to blog that contained an attachment that e mail was then forwarded to the alleged victim in the case involving garrett smith ordered by home forwarded by phil betty who was the recipient of the first e mail and how is mr betty related to anyone and in the case he was an associate of garrett smith so mr beeny had communicated with associates of mr smith about mr smith's innocence that e mail did not ask mr b or anyone to forward that e mail to anyone and did not ask anyone to contact miss cheryl smith nonetheless it was forwarded to her and then forwarded to detective aldridge that email contained an attachment referred to as a credibility report credibility reports are the attachment was asked by mr betty or attached by mr beanie attached by mr beeny on the first e mail it was a credibility report and it discussed essentially the case against mr smith the evidence or lack of evidence and it specifically made criticisms of the deck detective aldridge and the vancouver police department that was the first team who prepared the credibility report i don't think that's in the record i believe it's an official report no it's it's essentially a p d f that was later seen on the web page that comes up an email to i mean it was prepared by mr beeny it was forwarded by mr b no idea who prepared the attachment who prepared the credibility report i believe it was miss ackles but i don't think that who she is the actual author of the blog ok so it was but it was prepared by private citizens and wasn't prepared by anybody within the police department of the or the district attorney's office correct it was citizens credibility report it was them saying this case against mr smith largely relies on the credibility of one witness and so we're comparing in that  credibility report the credibility between these two people because there were no other witnesses then fourteen days later an email is sent by mr beeny to nathan smith and nathan smith with garrett son that e mail did contain a link to the blog now that e mail was never seen by cheryl smith it was not forwarded to cheryl smith there's no indication she ever saw that and those are the entirety of e mails sent or received in this case we have two e mails in the record and that's it then at a later time on the twenty ninth of april miss meth obtained a temporary ex parte restraining order against mr b that was served on him one april twenty ninth by sandor aldridge and at that time she was already aware of both of the e mails and the reason she was aware of the e mails is the second e mail was forwarded by nathan without comment to his mother who is not cheryl mr smith first wife and then that was forwarded to detective aldridge so at that time detective alters was aware of both emails she served the restraining order and she quote explained to mr beeny that he was being socking and that the charge stemmed from the information in the blog he was disseminating so what was the basis for the restraining order the ex parte restraining order was based purely on  statements by miss smith that said that mr binney had called other people there were mutual associates of mr garrett smith and cheryl smith that mr binney was alleged  have called and so the it was any order was not based in any part on anything similar drama glee if i don't mention anything so far yeah i don't believe the restraining order was based on the blog and i believe  reference that he had called and emailed people but it did not provide any details about who was actually called what was said when they were called it just that he had called people saying certain things about the case and of course that was  so when detective aldridge served that restraining order on mr bean she said to him and this is from her testimony on may twenty eighth at the later hearing she said that she suggested to mr beeny that he take down the blog she essentially warned him that the blog should come down so the next day the blog does come down and officer aldridge maintained the status of the blog she looked at to see if it was up or down three days later the blog went back up and so then on may seventh detective aldrich with no information aside from the fact that the blog was back up she had no information beyond what she had when she served a temporary restraining order she went to him and placed him under arrest for a crime he didn't commit namely she charged him or she placed him under arrest and booked him into the county jail for felony cyberstalking a crime that she now admits he couldn't have possibly committed could he committed misdemeanor no he could not and i'm going to get to that in just a minute can i ask you one question about the timeline that you ran through so i didn't i can't remember the dates now but the the first e mail that you said he sent he said it just went to one recipient in the record we have the copy of one e mail and the two line it says undisclosed recipients which is which is standard internet for somebody looking at that would certainly have probable cause to believe that it went to multiple addresses not just the one person you mentioned right you could believe that it was possible certainly ok yeah you're telling us as a factual matter even though it undisclosed recipients it went to one individual and that's it no i'm telling you the record is not clear either way ok you only know one person because because he or she forwarded it to carol smith director so with no additional evidence she played placed him under arrest the clark county prosecutor's office said we're not charging him with this crime the vancouver city attorney's office later told told her told detective aldridge that there had to be a quote additional witnesses who had testified to quote receiving multiple e mails from mr binnie containing the same disparaging language and quote so then she had him arrested a second time after she was advised by the city attorney's office that there needed to be additional evidence well no i thought she didn't have him arrested she threw oversight did not take down whatever the thing is called my memory that right she put a bolo a bit on the belt to have him arrested and then she was after that point told by the city attorney's office this is insufficient evidence and she left the ball out and as a result he was arrested the fact and time at his home  we're asking the court to reverse the lower court summary judgment for a couple of reasons one is the chronology here makes very clear that mr beanies protected speech that is criticism of the law enforcement investigation and a law enforcement officer is the but for cause of his first arrest and second arrest and you know that from the timeline because there was e mail one e mail to temporary restraining order served and she could have arrested him then but she didn't instead she told him take the blog down when the blog went down and came back up that's when she decided to arrest so you have the but for cause ation for the first memory to arrest claim regardless of whether or not there is probable cause now as it relates to probable cause there's no evidence of specific intent in this record in the court and the lower court didn't really analyze that at all additionally if you look at the cyberstalking statute and this is this is really important it says that you can't have repeated contacts to the person or in this isn't i'm quoting this a third party repeated contacts to a third party that interpretation that the fitty of vancouver wants this court to take would essentially make it illegal to do anything on the internet they want this court to take the position that there's probable cause under this statute any time an e mail is one e mail that embarrasses somebody the sent to two people that suggests that the statute may be overbroad therefore is unconstitutional but unconstitutionality wouldn't wouldn't be a defense here and it wouldn't it wouldn't be it wouldn't be grounds for you to proceed with your suit that was if they even if we were to say wow the statute is unconstitutional it doesn't mean that officer aldrich had to make that he had to make that judgment and is in violation of the constitution of the first amendment under section one hundred three because he failed t understand the court's point and we're not taking the position that the statute is unconstitutionally vague in fact we don't but that is not just because they commit is maybe way overbroad and we don't think that either and the reason i say that is because if there was something wrong with the statute we would have known by now this statute follows off the telephonic harassment statutes very similar to a lot of case law interpreted that it's talking about how you have to go directly to the person who's being harassed you can't telephone call person a and then person b and somehow that be harassment first and see we have a large body of telephonic harassment case law and we've had this cyber stalking statute for quite a while and even with that we haven't had any officer who has interpreted the case in such a way and we haven't had any official interpretation from anybody suggesting that interpretation that this suggesting now if there had been  if there had been a no contact order in place here then it might have been a felony is that correct i believe the statute requires a prior conviction not just the order but then it course would have to violate the order and i would point out that in the order that was entered again against mr beeny the hearing officer said the web page was protected speech did not order that the web page be taken down said she wouldn't take it down in the order did not say that he could not post anything on the internet so i'm looking at three three c in the cyberstalking sense i think you're correct to say that it would it would require a conviction for having violated a no contact order not simply the existence of a no contact or right ok so this presents a real the city is hoping this court would view this statute as somehow authorizing the arrest of any electronic community communication to two people that's embarrassing to somebody else and if you look on twitter if you look on youtube if you were to see somebody videoing a protest where people didn't want to be videoed protesting and you're putting that out facebook live for example you're instantly communicating to multiple people and that under the city's interpretation is repeated communication and that's that's not what the statute says no reasonable officer would have interpreted it this way i'd like to reserve the balance of my time ok well before you sit down and we'll make sure you get enough chance to respond i anticipate there's going to be an argument about qualified immunity can you give us a hint as jury answer that argument sure well one we don't believe any reasonable officer would have made this arrest and second of all i think in the ninth circuit at least it's been on notice for quite a while that you cannot arrest and retaliate taishan for protected speech do you want me to go into that that's ok all right and you think you'll save some time all right thank you thank you good morning your honour's dan lloyd and may it please the court dan lloyd on behalf of detective sander aldridge and the city of vancouver just over ten a half months ago and following the filing of both principal briefs in this case the united states supreme court confirmed three aspects about the probable cause and corey that guides disposition of this appeal that case d c vs westby said number one probable cause is not a high bar number two probable cause does not require proof of criminal activity only a fair probability or substantial chance of criminal activity and three a court herb's when it examines the evidence through a divide and conquer l the district court adhered to these three guideposts and properly found that detective aldrich had probable cause as a matter of law which in titles for to qualified immunity so review who we heard we heard a fairly detailed narrative from the other side suggesting pretty strongly that she did not have probable cause and suggesting pretty strongly that she had a retaliatory motive what did she have that gave her probable cause thank you and i'm addressing only probable cause me what information was provided to detective aldridge the narrative that was just provided to you simply cited to two e mails that are in the record however on summary judgment we put forth evidence of detective aldridge's police report and also cheryl smith's declaration in which she adopted her petition in support of the anti harassment order nothing that mr beeny submitted in opposition to summary judgment conflict with that so to answer your question judge fletcher here's what's in the record on the element of intent to harass she adopts her petition as true and then on excerpts of the record one ninety eight she found the emails emails plural that were sent to her business associates her family members her friends even her doctor calling her and a hug bitch you all drunk a fraud that she is aggressively violent when she is drunk which mr binnie would later admit if he had no idea whether it was true and also that that type of language could be viewed as harassing on the repeatedly element judge wofford you properly commented that the emails do show that it was sent plural multiple times on the repeatedly element multiple times or to multiple people multiple times multiple times it mean for the same e mail forward and different times it's not the same mail but it contains the same thing it was an email containing the link to the blog so it didn't help me understand the multiple times i'm still not sure i'm following you sir sure and this goes back to the interpretation of cyberstalking which no washington court had ever interpreted this statute at all at the time of these arrests repeatedly has been construed in the telephone harassment that gets that gets to repeatedly repeatedly under washing law means more than one and i know that i'm asking a factual question what do you mean when you say repeatedly what happened it was repeated is that beanie sent multiple e mails plural that for fifteen april fifteenth do we know that was sent to more people than one more person more persons than one the the link yes and that is contained in cheryl smith's declaration where she said that that mr binnie was sending emails plural that contained links to the blog that called her a drunk but this is simply cheryl smith this is what she told the court what she told the court she also told in her declaration she said she told the police i mean did she attach anything that would show that it was sent multiple times or ordered or does it just simply what she said this is simply what she said ok but again this goes to the difference between proving a crime beyond a reasonable doubt and simply  an ex parte proceeding when she got the protective order yes but then it wasn't ex parte when mr beattie came in and testified in the protective order was granted for a year based on the same conduct ok but was there any evidence the deuce there that's in the record that shows that he in fact sent this multiple times along with the link we have we have the evidence we have the evidence that the plaintiff said shows that it was sent to nathan smith do we have evidence to present to anybody other than nathan smith we are asking is there evidence is there concrete a copy of the email itself no but you have miss smith and detective aldridge is unrefuted testimony on summary judgment that it was sent multiple times what about the e mail i'm looking at it's on our three e mail that her son received and she says in the cover to detective aldridge here is another e mail my son received do we is that some suggestion that in fact the son had received himself multiple e mails communications with the intent to harass one person and then that they can electronic communication is sent to a third party a different person it doesn't have to be sent to the victim under the cyber stalking statute and actually the legislative history of our w nine sixty one to sixty speaks to that because originally that third party language wasn't in the original bill but the legislature wanted to expand the protections of those who are victims of online  so getting back to the question on qualified immunity in a question on probable cause when there is no dispute as to the historical facts meaning what information the officer was given then qualified immunity and probable cause needs to be determined by the court as a matter of law and again westby reminds us that we don't need concrete evidence of a crime sufficient to convict all we need is a fair probability so when mary smith judge wapner as you'll probably appropriately point out said my son nathan has received another e mail from mr binney containing link to this this blog that's multiple occasions to the same individual and again this goes to the prosecutor's interpretation of this statute which had never before been interpreted by washington courts and this also takes us to vs north carolina where the supreme court said even if detective aldridge is interpretation of repeatedly is wrong and even if that exceeds abounding creates an overbroad challenge to the cyberstalking statute it's still a reasonable interpretation of the statute and she's entitled to base probable cause on that interpretation the prosecutor mr mccloy or might have had very good reason to refrain from moving forward on charges because if a washing court hadn't could reverse the ninth circuit say the probable causes totally fatal in which case there's your answer the supreme court could say probable cause is independent it's irrelevant mr bartlett can move forward with his lawsuit in those cases that might be just that we wait  for because if the court agrees with our decision in ford our two thousand and thirteen decision and ford followed in the case then you lose potentially it depends i don't have a magic able i don't know what the supreme court's going to say i thought that in our decision in a cost that we said that that that that the probable cause had nothing to do i mean that i'm sorry that the retaliation and nothing to do with whether there was probable cause you're right and acosta does provide then if we have if we have dueling decisions then how how could how could your client have made a mistake she couldn't have made a mistake the reason why i suggest waiting is simply to for consistency purposes with american news information services versus gore which  your fellow panel involving judges wardlaw judge her wits and district judge korman simply for consistency but even if the supreme court comes back and says that create some new framework we would submit that the law was not clearly established not only because of acosta but also because of even after even after the arrest the debate still goes on today as to what effect if any probable cause has on a retaliation claim i don't i don't think that's true in our circuit maybe elsewhere you're right but in our circuit as of two thousand and thirteen with ford the the rule was clearly established now it might be appended by what the supreme court does your reading of a cost i think is off because all the court the me if you think i'm misreading it all the court there said was that as of two thousand and six the law was not clearly established on this point i obviously has nothing to do with what the law was in twenty fourteen that may not be it's not just my reading it's actually the reading of other courts within this in our brief the fact is judges within the ninth circuit and there's a even an opinion from the district of oregon that judges within the ninth circuit can't agree and when judges can't agree the law is not established it's not in the words of westby quote settled  can read forward and i know exactly what ford said the law was as of two thousand and thirteen so i guess i'm not sure what what relevance does if somebody misread a cost after that what relevance does that have because of judges circuit at the time which was every bit as clearly established as ford was but the spring court said no hartmann versus more cast enough doubt that your circuit precedent is now called into question so agent is entitled to qualified immunity but we have for that comes down after that i will let me ask you this because i'm just not persuaded on this point but do you concede that if if we were to read forward as having settled the matter at least whether probable cause is or is not a complete defense to a first amendment retaliation claim if that were settled as of twenty thirteen do you agree that there's a nuff speech independent of the harassing speech on which a first amendment retaliation claim could be grounded not in this record no critical of her and her conduct and that the blog too had pretty severe criticism of her and the police in general and so why couldn't a reasonable jury look at that speech and say boy that would be a basis to think that this officer even if she did have probable ideas that's what makes more sense i don't have much time remaining i do want to make sure i answer any questions the panel has with respect to probable cause and qualified immunity but there is a cross appeal here and that's on mr binnie state law criminal records privacy act claim and our position is very simple on this is that the washing supreme court has consistently held that when the legislature passes the law it changes the law yet the district court on a motion to dismiss on the pleadings said that the two thousand and twelve amendment to the criminal records privacy act was already and inferred in the statute itself so that two thousand and twelve legislation did not do anything why do we even have jurisdiction over this one because it is and we stated this that is a an adverse order that was entered prior to final judgment so that enables us to call it doesn't remain to the state court for decision no there was no removal this was father originally in district court there's no proceedings in state court my understanding is that you got a dismissal of that claim without prejudice and you wanted it to be with prejudice that's the basis on which your grant correct and we have we have jurisdiction in that scenario yes when there is a final judgment a party who has received an adverse order anytime to was the officer was held to have acted unconstitutionally but then was let off the hook on qualified immunity right now was done a judgment a final judgment as to the standard of conduct and the officer and those associated with the officer within have to live up with that because that was the new know and now and if that does effect the city of vancouver because we constantly get public records request for police reports that now we are forced to look beyond the four corners of the document in order to to produce a judge's rulings and binding it's a public decision ignore that ignore the decision well if we ignore the decision then we potentially subject ourselves to criminal records privacy act but we but but you get to argue that in washington in washington courts of the washington courts agree with us then you're liable if they disagree with us and you're not liable and parties act within the state of washington and we have submitted reason mr beeny never submitted a thing in opposition to challenge our statements to why this court  jurisdiction on its own but as we read the law that when there is a final judgment a party who has been adversely affected by any underlying order may bring that order before the court ok thank you ronnie you let your thank you  hearing admitted that i think certain things would be harassing or embarrassing and what they do in the brief is they actually quote the question that was proffered to mr beeny they do not quote advancer his answer is those things would be embarrassing quote if untrue if untrue is and quote is what he said and we submitted police reports from a parallel matter indicating that in large part what he had said in those e mails the two e mails were in fact true or at least arguable what do you what do you how do you respond to the argument that officer aldridge wasn't titled who will lie upon the statements in this mess seeking there were aware of and i don't think there's anything in the record saying at the time of the first or second arrest that officer altered had reviewed that court file or the declaration and the petition for the temporary restraining order so i can't rely on that now and kind of bring don't believe there is again and then i did want to end my time just point out that there was discussion about rush rush shelley and the idea that that may have answered a question if you look at footnote eight in  maricopa very clearly that richelle did not answer the arrest question that was a prosecution question and as far as the request to wait for ruling on bartlett the supreme court took close men and said hey we're going to answer this  they didn't and there's really no guarantee that you'll answer the probable cause immunity question in bartlett so we would prefer not to wait and we do think this case is also pretty dissimilar from dartmouth that was  officers in the heat of the moment alcohol party this is somebody writing on the internet about the officers case that they investigated food asked the court reversed the court thank you thank you think playing both sides for their arguments