was available at the time to sergeant salazar in the totality of the circumstances in the middle of the night two am and mr washington carrying a shotgun and the report to sergeant is why doesn't the testimony of sergeant we own create a fact issue a material fact issue because sergeant leon says thirty he never as i understand anything from the from the valet and so both of those are factual discrepancies which would deprive if they are material fact issues that would deprive us of jurisdiction on this and i can see how one could could conclude that but that's not the standard that is in play here as long as there is an even if he was he would still picture if you have an officer running around looking for ways to charge people and if the officer has evil in his heart that certainly matters to us but there's nothing to suggest you know that he had evil in his heart and point of what we call evil but even if he had some alternative motive for wanting to find some way to arrest mr washington that's immaterial if there  was an objective reason if the evidence available to him at the time was such that it would give an objectively reasonable officer on the scene reason to believe that there was probable cause  what is the undisputed evidence that was available to him at the time not disputed by officer leone in the other officers davis and the other one but but what is the undisputed evidence that supports this proposition you h club that the harris county constable deputy carry robinson was there responding to a call about the group of males throwing bottles and then there was the report that sergeant salazar says that i was told that they that he had approached the valets now that's not disputed if you look carefully at what that this critical witness was in the when there were five or six families and nobody went looking for who this one was they were as you can see from reading the briefs are about five or six officers involved is the da who assistant district attorney nelson accepted of the charges in and agreed that that's a felony but that he then he told him that if ahead of time that's in the record i thought it was just officer sala statement that he was told that not that we're in the record does it does is it in there that nelson told salazar before the arrests that that was a can still law another ok but i'm talking now about nelson allegedly telling salazar that oh you know we support this charging because that's what salazar says he called back and was told that it would support and i didn't see that in the record well except through the statement of salazar right and but it's not disputed that well it is disputed i mean that that it happened well didn't really call the da ok was there anything else in the record i'm sorry i got us off from your discussion of the undisputed facts are there you and you said that he was called out in the middle of the night because people have been throwing bottles and said that there was this oh it was a layer of what else in the record if anything supports that is undisputed supports the totality of the circumstances as your client wishes to them to be shotgun and especially your house has been imperilled in the in the middle of the night you might want to be walking along with your shotgun well i'm not disputing that you can do that or didn't do that but when officer and i  is here's another officer who has more information than i have and it's an urgent situation based upon sergeant laon support you know go stop it and he didn't deny that he said that ok did he get a shotgun back oh the district court the evidence is conflicting whether washington was physically on licensed premises and whether salazar with every through advised is not an incorrect characterization of the record i think of the first part of that statement is correct the second part of that statement i believe was not i didn't record it is the evidence is conflict dean whether washington was physically on licensed premises you say that's correct i think that's correct i think there immunity would cover that as long as it's reasonable for him to believe that there is some offense that they suspect may have to mete probable cause he will have probable cause and be covered by qualified immunity even if you makes a mistake a fact even if law as long as there is an objective reasonable basis for which from which an officer could any officer could reasonably believe that the suspect had created had committed any crime officers are the ones that are contradicting the testimony that's extremely unusual and they indeed but they didn't contradict the heart of it about him approaching the valet now it i believe judge will it that it it is uncertain whether mr washington stepped onto the premises or not is not a material fact whether he did or not it is not a material it is a material fact as to the the viability of the charge against him but that's a war here for it is not a material fact as to the electability of reason to believe that he did and from the overall circumstances he can believe sergeant cells or could reasonably conclude that well he went up there to the valets the ballet zero on the parking lot the parking lot as part of the premises and he committed a crime and two of the other officers also agree that this should be thanking you save t is really no dispute in the ever danced about what sergeant salazar knew at the time lieutenant leon them sergeant leon was very clear he was absolutely adamant qualified immunity criteria is judged by what the office and knew at the time there is no dispute but that all he knew at the time was that there was a man walking down the street with a shotgun now washington stop and had a conversation with the valet the valet stand was on the sidewalk and he conversed with the valet about who he was looking for why he was looking for that conversation was the valley's agreed with mr washington that that's terrible but they hadn't seen about it and at that point washington's walking back to his house the problem with this case is that salazar is in a box from which he cannot escape this court in its clarification of how to rebut qualified immunity first thing we've got to be able to show is that rights were violated and that means in this context that there was no probable cause to arrest mr washington you can take either of the two scenarios posed by the appellant as an excuse for arresting him they both failed what court i want to understand is that mr washington was actually arrested in charge for the unlawful carrying of a handgun under circumstances where no one thought suspected had any reason to believe he had a handgun everybody knew he had a shotgun but even if he had a handgun he had a valid permit to carry it so that eliminates that basis now if you go to did he set foot on license property they can't get there that way either they cite the texas alcohol zero three a now that provision defines premises as including the parking lot but the problem is that that provision of the texas alcohol and beverage code does not apply to the carrying to the possession of firearms on licensed premises the only place in texas that you get a prohibition regulation guidance about carrying firearms in the texas penal code now the texas penal code section forty six point zero three c c is this about the premises own which powers are not preventing first of all it defines premises as meaning a building or portion thereof i did something i can see that this is not illegal under the penal code don't think i do they have never told me that and when we argued this case at all then you proceed i bet it's if that one has been conceded i'll move along but at the summary judgment hearing they argued that point most if recently and the judge had to wrestle with which conceded but the point being sidewalks parking lots public or private parking garage for purposes of possession of firearms on purpose is a license to sell at the hall is not illegal you see  salazar intended to arrest him for a crime that does not exist and had not existed in eighteen years that satisfies the first prong of our burden to defeat qualified immunity the first prong is was the arrest illegal was it without probable cause well it was because there was no factual basis and if you look at the totality of the circumstances known to sallisaw there was no basis they are we do allow now ask us to look at was that area of the law unsettled was it an open question and that's language from the supreme court's opinion at ashcroft versus l z well the statute that says it's ok to set foot on a parking lot is clear it had been on the books eighteen years when this happened so that's not an issue why did he do that if you think it's an unreadable mistake as a matter of law absolutely absolutely  attorney to authorize the arrest thank you for raising the question we are convinced that that call was never placed there ain't a district attorney in harris county that would tell officer sala surmised that it might have been an assistant d a nelson we ask there is the reason for the requirement in harris county to call the district attorney is because we don't presume that the officers on the street know anything there is to know about the law so they have to call the d a to clear the charge mr washington had been cleared when salazar got to the scene and was told about officer clopton that this is a politician that we've been having trouble with in the past and i need him arrested at that point sala went to offices barner and officers david and said i want him in jail marner and david in compliance with their duty said in jail for what what did he do whereupon salazar say it i want him in jail because i say it so that's the testimony of officer david a twenty six year veteran with the police department each and every officer the harris county what point was did that conversation occur before or after he had talked to the d a the last time that conversation occurred after he talked to clapton and after he walked away with his cell phone pretending to talk to the d a there are records kept in maintain when these officers own the  took place but is it is the record of its absence in a place it would have normally appear in the record he said the phone records are in the evidence well it's not a phone record per se the  so we have the motivation to falsify it and fabricate the arrest coming from officer clopton we have every officer on the scene who says this was a bad arrest there was no probable cause there no basis the appellant points out that the arrest may have resulted from the fact that the valley was afraid was frightened but if you look at the testimony of officer leon everything that officer salazar based his decision to rest on comes story the second prong of this are now our burden that we must carry to rebut qualified immunity is the mistake that he made reasonable and we know from ashcroft versus alkyd that the office and get away with making a mistake if he's dealing in an unsettled area of law if the law is not clearly estab he can't say that here because the law is very well established and there is no conclusion here but that this arrest was a result of vindictiveness riviere and retaliation for this excellent criminal defense lawyer who has told for almost a century fighting for the rights of the criminally accused and yes he has had many run ins with the houston police department during the argument counsel thank you thank you not it seems like there would be but i don't know if there are and they're not they're not there in this case and this i mean there's nothing to show outside of sergeant salazar's testimony that he made this phone call there's nothing to show that he did now eithe be you do concede that the law is such in texas that you can be on the license premises with the shotgun right judge i spent a good bit of time researching that issue and it's it's just unclear to me i believe that unclear here is the section that i cited it says no weapons can be there will i many years he has to have an objective really reasonable belief that the law is to the contrary and it can't just be that he thinks it has to have some and you're trying to get your objective reasonable list the fact that he was told by this da so you're offering it for the truth of the matter not just for his view and it's hearsay if you don't have the a so you're offering it for the truth of the matter that the da also believes that in and so we can't take the da's view at for the truth of the matter to show that he's objective lee reasonable well we just have to decide on our own as a matter of law whether that subjectively reasonable a c even assuming that conversation took place without anything else in the record while there was other support just to exclude the da the