case and i want to focus on those to start out with first is the district courts conclusion that mr bartlett unlawfully interfered with an investigation second is the district court's conclusion in face of the video has to the location  and the reason inferences that can arise from the evidence given the timing and the events that took place at the time that officer wait aleck to dish of mr bartlett to start with the first issue that district court excepted the and say to him i don't believe you have the right to speak to the minor who is accompany me to this event without his parent being present though you could you can see that i believe that mr bartlett approached the officer very closely and used to a loud voice which he said it was necessary in order to be heard over the background noise is that correct what we conceded is that this was in the vent when there was a very loud noise in the background mr bartlett approached the officer as necessary to communicate to the officer or even the officer many miss your butt may have understood he was non threatening but from the perspective of the officer who i think you'd have to concede has reason to be concerned about under age drinking at this particular event is trying to investigate that and has this guy come up approached him closely and started speaking in a very loud voice from the perspective of a reasonable officer how is that not interfering with what the officers trying lawfully to do well i guess you have a number of questions and there may try to break them down first what exactly is the alleged interference you have a constitutional right to express your opinion and the context  reasonable officer takes into account context and the reason that you don't view approaching somebody and expressing your opinion to them in the same way at a concert versus in a church and  whenever officer weight decides to lunge and shove mr bartlett he has to step forward go like chess and so was there anything that was stretching about mr bartlett's posture or anything else that he did in the context of this event absolutely not and what isn't that's your view i'm not so sure it's going to be the view of a reasonable officer the time and place of the event well i guess i would say so so what tells us that it is your view is the one that the reasonable officer should have given the time and place of the event two things i would say to hold otherwise would be to say that any time you approach an officer to speak with them at a concert you are placing them in fear of an assault because you approach them in a manner that you can effectively communicate to them number one number two testimony from officer preschool you who is the supervisor at this event and i want to as i think this is a very important i want to actually quote what took place here i asked officer preschool can you give us the page number this is in the record at two hundred two office or wait hadn't felt the use the need to use force prior to officer arrival can you give me some explanation for why it is he could have reasonably elected to use force after office and it is arrives bear in mind the video in this case shows that the assault by officer way is prompted by the lieutenant who was on in charge of this event whether or not he could give any reasonable explanation for that and his answer was i can't so what actually when you view the record and so and we asked a reasonable police officer his supervisor can you can you explain that you give us the reason wix mation for why the arrival of another officer prompts the cell his answer was he could not now it's  the court there is no reasonable explanation other than that for whatever reason when the other officer arrives with a camera these gentlemen decide that they don't want had this occur anymore and they elect to sell mr bart that's the reason we have prints from that evidence regardless of that the state argues that officer wait was alone and fearful of mr bartlett when this assault took place that is simply not supported by the record satisfied my concern but that's another issue well i would say this in terms of the reasonable officer this case the court has plenty of cases that say a reasonable officer makes decisions based on the context of the events the entire set of circumstances and to equate any individual's actions in a loud noisy context with an individual's actions where there is no noise is not reasonable what part is true but whose perspective are we supposed to be  make an issue saying and evidence you can't talk to this minor which legally is not true but that that's mr bergen is perspective and opinion so he states it from the perspective of the reasonable officer i don't want this guy what appears to confirm by referring to him as a minor i am not so sure i'm not feeling threatened or harassed by what the person coming up is doing and if that's the perspective we're supposed to take well let me give you another bit wait is apprehensive mr barr is the video show that officer wait is fearful of mr bartlett assaulting him at the time of this takes place absolutely not what it shows is two people engaged in a peaceful conversation and mr bartlett simply bartlett suddenly closes on him gets close to his chest is in his face he shoves mr barton mr bartlett then comes back at him again all patently documented false statements one hundred percent accurate that the level of dishonesty in the police office in this case is appalling absolutely now count the argument you're making on the fourth amendment ground but there's another hurdle you have to clear here which is qualified immunity what the clear authority that told these officers at this time in twenty fourteen i believe it was that what they were doing would violate someone's constitutional rights when the case first off i would say houston vs heel which says you have a right to peacefully abusive in that manner is not the basis to assault somebody an arrest somebody and i would cite the court two cases in terms of the excessive force blankenhorn the city of orange and younger says county of los angeles typically in younger says county los angeles the court held that whenever we're talking about relatively low level offenses misdemeanor offenses and in the absence of you being reasonably perceived as assault of the police officer a threat the police officer that you should proceed the use of force by a verbal indication that would have been absolutely appropriate for the police often this case to say mr bartlett step back mr bartlett i don't like how close you are to me here i'm going to proceed with threatening i was not close i did not speak over a certain way and he never asked me to step back or otherwise gave me any directive whatsoever until the second he lunges at me and says step back as he shoves that's the best case for you well i think younger says county of los angeles is a better case and it gets to the point here of whether or not there was any force that would been appropriate for this officer to use without it being perceived by a verbal warning to mr bartlett and that's what i think younger says county of los angeles stands for is that we're talking about petty stuff relatively minor stuff you need to proceed an assault on somebody by a verbal indication i read very short on time so let me just highlight a couple  things here in terms of this interference with investigation thing there's no crime of that in alaska the court put a label on it but it didn't explain what conduct by these police officers there's no audio in this case contrary to ninety five percent of the cases in the state of alaska and yet we have a situation here where the police officers continually misrepresent claims without a video or audio he didn't audio recorders lives meeting he says yeah i spoke with the two individuals who were there and they both told me they had no idea who mr bartlett is because he wants to betray mr where he asked them about whether or not the mr bartlett and had he done so you told him the truth which is that they did know mr parlow so they manipulated the police officer we've detailed in our with the district attorney with numerous senior system attorney general for the state of alaska on behalf of alaska state troopers any of us and we qualified immunity protects all but the plainly incompetent and those who knowingly violate the law mr bartlett in this case bears the burden to show the write we know this is a challenging police environment we know there are increased safety risks here this is a rural crowded event with a lot of drinking it's the middle of the night we know that the troopers are generally outnumbered by the throngs of  we know mr bartlett approaches trooper wait gets within arm's reach and the trooper wait needs to stop his investigation to deal with the person who has approached him we know that trooper wait felt  threatened and we know that qualified immunity gives police officers the ability to make reasonable mistakes and he believed he was about to be assaulted whether or not that is in fact true the law gives him as the police officer on the scene facing this the right to act on that reasonable belief mr bartlett says well these are legal things it's legal to question a police officer and that's  true i would point the court to remain as against city of when a park within the circuit held although each fact standing alone is completely legal conduct innocent in the eyes of the untrained may carry entirely different messages to the experienced or trained observer and that is the case here mr bartlett relies on cases that deal with pure speech as opposed to conduct for example the end of sketch case which concerns a single phone call this doesn't clearly establish the law of what actions the police could take when faced with a man like mr bartlett who is in the trooper space and is and is causing him to be in fear that he will be assaulted the only thing i would say in response to your question which i think goes to the malicious prosecution is we know that the prosecutor still to this day believes that there is probable cause for these offenses we have identified four different offenses and we have record evidence that you know a sitting prosecutor in alaska believes there is probable cause for these we know he did an investigation be charges the testimony was budget cuts trying this case would have would have involved going back to the rural area that's expensive for the state and the state has a big budget problem and  presume i mean there's no basis to presume that the prosecutor statements are inaccurate or that he doesn't exercise his discretion in good face we've identified four different offens that we believe there was probable cause mr bartlett needs to show that clearly established law would have prevented the troopers from arresting on any of them and he hasn't made that showing he may have shown that there is reasonable to spew about whether these charges were appropriate about whether there was probable cause but the standard is that no reasonable officer could believe there is probable cause and he simply hasn't made that showing here you know one of the claims in this case as i understand it it's of retaliation first amendment claim because i think there is case law saying that even if there is probable cause to arrest somebody you can't do it and to retaliate against person i'm right and there's a case called for vs city of yakima i want to give you an opportunity to comment on that particular claim the refer some of the retaliation and how the district court handled it sure your ninth circuit precedent is that the existence of probable cause negates the retaliatory arrest claim that even if there was even if there's some colorable allegation of that if there is probable cause than the arrest is valid what case is that  i say because there's language in ford versus city of yakima seven o six f third eleven eighty eight which i think based contradicts what you just said in there's a supreme court case called rightly which talks about this issue in the context of qualified immunity so if you have a case that says that's not true i'd love to know what it is it's not coming to me your honor but even even let's assume that's true your honor i mean even if that's true there simply isn't an adequate  doesn't automatically lead to arrest officers exercise judgment to decide whether an arrest is inappropriate in a given case and even if there's probable cause and i think that's what judge jones is referring to in our courts ford case if probable cause doesn't give me automatically mean there can't be unlawful retaliation and if there's evidence that maybe the officers went forward with the arrest because they didn't like what mr bartlett had done before and not agreeing to talk with them wouldn't that make out a case for retaliation for exercise of the privilege not to talk to the police officer well it could but the evidence here is very weak your honor i mean you know the but for summary judgment and so right isn't that evidence that the motivation might have included retaliation for not having agreed to speak to the officer we are summary judgment your honor but the qualified immunity law protects police officers when they have to make these quick fast evolve and songs on the tape but if the officer did in fact make the statement suggesting his motivation was mr bartle refusal to speak how does qualified immunity protect that if we accept that as being the set of facts is qualified immunity a summary judge and we take the set of facts and say ok could a reasonable officer of known this was improper if that's the state could a reasonable officer not have known it was improper they know they're not supposed to arrest people because they decide not to talk to the police officer sure your honor i mean but you know we've we've asserted four different charges some of which don't have anything to do with there's this case called for versus city of documentary which suggests no matter how much probable cause there is if you're if the rest of the action taken is to retaliate on first amendment grounds then there's a cause of action and so  i really would like an answer to that case why doesn't that case or that present a problem again put aside my own views as to whether it's right around the circuit so how do you respond or is there another case out there that says no for example there's a case when asked about the police officers pulling over on the side of the highway and you only look to jack to fact you don't want to subjective intent of the officers ran seems to me someone in conflict with for advers know making sure there needs to be probable cause for one offense it doesn't even need to be a closely believe it offense to that which the arrest was for but there needs to be something and so i think analogizing from not i mean he needs to show that there wasn't a basis at rest you know other than retaliatory motive on any of these charges right we have conceded under this hypothetical and ford says even if there's probable cause to arrest that doesn't mean there can't be a claim for retaliation i'm not sure it really advances the cause very much to say well there are multiple grounds multiple offenses he could have been charged with there with the bottom line as a result of want to rest and the question becomes what is it that says these officers have qualified immunity in a situation where there's at least some evidence that their motivation to take action against mr bartlett was that he wouldn't talk to them or wouldn't talk to them when they wanted to talk to him and later he did talk to them when they didn't want to talk to him gets confusing  there's a tension between these cases i mean we the qualified immunity probable cause analysis is exclusively objective and looks to the facts that we can establish peace on without respect to the subjective motivation so i agree with judge jones that there is a tension between that and the very idea that even where there is probable cause or reasonably arguable probable cause on an objective basis we are nevertheless going to penalize police officers for that to the court that in this case you know the mere allegation that shouldn't be enough to rob these officers of qualified immunity when this is when we do have that very clear objective justification  i want to briefly touch on the excessive force allegations as well this was a very minimal use of force here mr bartlett hasn't even alleged that he was injured even temporarily we know from circuit law that generally the lack of any injury is an indication that force was not excessive and we have cited numerous cases to the court in similar situations not identical situations but similar ones where more force was used and officers were granted qualified immunity mr bartlett has the burden to show that it is beyond debate that he that force was excessive and he hasn't made that showing the push was a very limited use of force under the sorgen and jimenez case is did only what it was intended to do and no more mr bradley didn't even drop his beer after the push and the controlled takedown similarly i would point to the sheridan's case which summarizes ninth circuit precedent as saying a controlled takedown maneuver that doesn't cause injury is not excessive force in the circuit and in that case actually the  arrestee was knocked unconscious and the officer still got qualified immunity and on the ground that that was a mistake mr bartley wasn't knocked unconscious or injured in any way start with the excessive force issue one of the pieces of evidence in this case was the policy of the state troopers that said that you don't use any force unless you attempted verbal force a verbal direction to start out with n number two that it's obvious that in the circumstances that that use of verbal words should be ineffective in accomplishing your result in this case well officer wait certainly claim certain things the evidence is very much contradicted hotly contested about whether or not officer weight ever attempted any verbal direction to mr bartlett any way shape or form in contra in contradiction to his own police department policy so i'm just point that out on the on the on the issue of the the district make decisions on was the misleading police reports and complaint that were filed by the officer in this case number one number two that when the video did come to light through our actions not theirs after we i asked him about the video they didn't have didn't know where it was couldn't find it never had any indication of where it came from we find it that he knowledge the video was clearly as it is in contradiction to what the officer said in many aspects and then the fact that well  state dismissed this case involving as an assault and all this parade of horribles that they've said mr barr lose is was is guilty of because they didn't have the money to go one hundred fifty miles down the road and try the case that is incredible on its face and you know we don't believe it and i don't think a reasonable person would believe it just cuts on a few other things the state says it's on contradicted we know that trooper what wait till threatened i don't know how the state knows that when i look at the video doesn't look threaten to me there's no evidence in the video mr barnes do anything stretton mr bartlett's twice the distance from trooper wait the trooper way to elected to be from the minor he was interviewing and we know that trooper weight had to close on mr bartlett to get close enough to him to shove him in a salt him those are not the actions of somebody who is reasonably threatened by mr bartlett's mere presence standing there looking at him listening to him i want to get to the location of the hand issue with let's not wrap it up though i will the court found that mr bartlett's hand was new near proximity to officer waits face at the time of the alleged cell when you look at that video what the video shows is that you can't see mr martin's hands until after the trooper weight lunges and mr bartlett and mr bryant starts real backwards and comes up it's and the court found that was reasonably construed as harassment of the police officer that's like saying if i walk up to you and punch you in the face when you fall on my feet you're harassing me that's not a reasonable conclusion from the evidence in our view i appreciate the extra time thank you very much thank you both counsel for your argument today this matter is submitted