you on behalf of the court for your request to appear for argument here today today is the st time that we have been back in this court room every or in any court room here in our new orleans courthouse and almost a full year and so we we are trying to accommodate lawyers who request live in person arguments where where we we not able to honor all requests but we're trying to accommodate where we can and we're very pleased to try to do it in a very safe manner as you know you had a separate check in time today you were knots set at nine am with a bunch of other lawyers in a bunch of other cases we have these handy dandy plexiglas dividers which separate us in the courtroom we have our masts and other devices and we obviously are very socially distanced on the bench and otherwise in this courtroom so we're trying to do our very best to make this a safe experience for you and if you have any suggestions for how we might make it even safer we welcome those suggestions to the clerk's office but i just wanted to let you know that we're glad to be here with you here today and that the troopers and title to qualified immunity and to dismiss the case against it that under the clearly established law that the troopers conduct was objective the only reason little different burden from the burden is just up at a normal summary judgment or not asking for id is itself whether or not the officer has the right or in whether you have to give your id that that's that's already been decided by and that's not squarely raised by this appeal estimated that that's not the issue it's not that well they just did let him do his video that's not the issue it's whether or not the stop was prolonging and necessarily be beyond the time which the officer knew that everything was ok do you do you agree that everything was ok once the officer had been told that it was a camera washing rather than a spray painting or do you  maintain that even knowing that it was a tower watching that doesn't mean it's ok but your honor now would maybe push back a little bit that it was power washing mr is a really our water we're here power washing but certainly the officer had not had the opportunity there are check that he was still a process of discussing with mr is a really what was going on and it was in all of that process of obtaining the identification with the test bits and what's the total time period believe it's fourteen minutes in a little bit which is a little bit less than i much argument here today and this is not a case where he the officer had to like call for the drug and they had to wait forty five minutes it's or something like that this is not any kind of case where the washing wouldn't it still be something to investigate because you're not really random people doubting power washing of government property about things i think they're certainly under the taliban the circumstances a reasonable suspicion that something unusual is going on i mean it's so the fact that you somebody said oh we're just power washing that doesn't assuage the necessity for the stop continue to continue the investigation to continue not at all because the officer i mean  certainly not objective we are reasonable for the officer to want to continue looking into the situation it's not a protectively on reasonable but the officer to simply not take mr word forward in that th it potentially could fall into the criminal damage to property by graffiti think it becomes a it does become a bit of a law school final question about what exactly is graffiti but certainly i think the video shoes that after mr cash was arrested when the trooper clearly went and took pictures and actually looked at the particula word freedom in the side i think at least an objective observer looking at that video i don't think it's particularly clear that that is in fact pressure washing  established that they weren't spraypaint teen or graffiti eighteen that it that was still up in the air yes i was up in the i think there was a of at that point the officer had done a very brief flashlight into the bed of the truck that he had not investigated the entire scene and i don't think it's i don't think it's meaning a meaningful distinction as to exactly what it would he did him i the district court has an obligation to point out that clearly established law again with respect to the district court the district court skipped over that step pretty broadly judge lemon so there's no question the initial stop was about wanted justified that's beyond serious dispute judgement just thought they were factual disputes about the remainder of the stop but you're saying the facts really lead to one and only one conclusion their art material factual disputes that might foreclose summary judgment yes your honor i think for purposes of this qualified immunity appeal any fact disputes to the to the extent that really are in are not material and again the on a th amendment claim even the constitutional violation itself you have to look at whether it is and reasonable or reasonable under the circumstances and that video pretty much covers everything that happened and it didn't since it's got to be from the point of view of the law material way it's he saw the trooper saw what was going on he saw this mistake is a relic there is mystic ok they might have been twelve feet apart it was certainly a part parcel of it even if he would hold the pressure wash himself he was there but there was further information from this because a really and from mr evans that this was part of an activity that they were activity having occurred or in the process of occurring correct record on this is it safe to be parked in this on the side of this is the overpass  is this a safe place to be part of is that a problem too i think that was certainly a factor was an unusual place it was not a safe place and certainly illegal to park at the time i mean did did the individual show say oh we're going to move along we're not going to stay here and we're not going to do this or did they i thought they were pretty much we're going to stay here do this because it's totally fine they a believe so i mean i think that's a fair interpretation of the record i think they were certainly not there were much more concern expressed much more about that the activity that they were doing immunity certainly does not clearly establish the law in this situation is just so different swat raid night club five hundred people going into a connected apartment where some people lived context of the case at hand it's not not as a broad general proposition but just just to be clear trooper curley didn't just view what he was seen as unusual it wasn't just a range it wasn't just weird he thought there was potentially criminal activity happening i believe so your honor because at the unusual circumstances were related to criminal activity yes toronto because certainly the record shows when he was asking about the spray painting and you if you're just if you're just power washing and not paint spray painting that shows he was thinking about that i think even that his st home his very st comments when he got out of his unit in a dress that this like a woody allen doing a spray painting so he certainly had questions about that he was unable to go painting did he ever confirm in his mind that they were in fact not spray painting  they please the court d a lot of there are a lot of hard qualified immunity cases but with the video recordings and this court's precedent the johnson case in particular this case is in one of the hard parts of the district court got it right that mr curly or trooper hurley's position is this situation was was exotic it was weird it was strange it was unusual it was a typical well not valid terry stop which is with the district court so we're ok at that point yes that's we have no issue with that as you as you explain tell us the point not to interrupt your dialogue but tell us when you get to the all the spray painting so it's not spray paint that would be fine is to is a really tall the well is actually this pressure washer is just just water just cleaning so right after that mr curly trooper curly goes up to the wall shines it's like he checks it out at that paint so he knows there's no crime but does he know at that time that it's leaving a message on the wall when you say well it's ok officer we're just pressure washing at one thousand one hundred and thirty dollars whatever time of night it is on the overpass that's one thing if they're pressure washing but designed to leave a message is he aware on the video is there any evidence video or otherwise that suggests that he's aware that they are pressure washing stansell message he is well aware that your honor because it's completely clear of on the video i think of the video and there is a photograph i soon to become really took maybe another trooper it's plain as day i don't as a stain or right now remember whether mr geza really was mentioning what we're using the stand so but i think he did on the video so for purposes of summary judgment mr curly saw it says freedom it's not it's an ambiguous you can tell it's a word and it's a word that's not been a pain it's written in water d mist mr cook action this together really did some research into that the municipal code in new orleans was in a state laws that we can do this we're not going to use chalk because somebody did that the french quarter and people got upset d we're certainly not going to use paint because we know that's a crime but we're going to do this pressure washing  yet because this is the st he's heard of such a thing to do decide whether it's totally fine or not he has to check it out and see what kind of damage this may or may not because it doesn't mean what is the message is inappropriate mr you know you know i know we don't want to be censoring speech or anything but you can't put you know profanity up on the freeway probably even with the pressure washer can books in the municipal government trying to figure this out no we well i have the benefit of that i think and can find that this is a crime and we're talking about this case we're not talking about a vulgar message we're not talking about drink coca cola and give the citation but the video shows d the stop was extended three or so minutes in the stop is not about this is not about being parked on the shoulder it's not about spray painting or not spray painting that stop becomes about one thing and one thing only whether mr coke cash is going to give up an id to go officer curley the st thing officer curly says after he's learned about the water after he's looked at it to mr co is you got your idea when you grow d show me your id is this what you all d do for fun you videotape the police that's that's the easy only approach as mr cook has to say that after he's learned that it's that it's just water and we know today that it's that it's not illegal as i can find a law against it no one else can mr chorley himself said well if it's just water it's ok but the stop from that moment on from three or so minutes in is all about demanding that coke cash produce a document produce an which should have been three minutes instead it was fifteen minutes so now we're going to go file a lawsuit in federal court because you cost us a few minutes of our life it's it's a false arrest case of coke at and it's because mr coke asked did not produce a documentary i d to mr curley satisfaction and mr curly can only demand that and impose a sanction for noncompliance if there is reasonable suspicion as to mr coke catch there is no argument really even that there was there was ever reasonable question committed the crime was about to commit a crime mr curly rose up on the car that stopped don't have an issue with that mr curly sees what he thinks is somebody spray painting and defacing property don't have an issue and to look into that don't have an that's unreasonable and that this person was involved in the efforts this is not like johnson is it because johnson's just the driver johnson he's the driver and it's driving the vehicle it's you where's this artistic project it's unique well and that at the time of the stop it wasn't a group enterprise it was mystic is a rally alone outside the car he was the only one doing the pressure washing at that at the time mr curly drove up on them so it was a group enterprise in that's what they were doing for a week or several days in the war lens but we hear about this one stop mr cook ask was an outside the car mr coe cash was simply a passenger in the car there's no there's no book this is what we've been doing around town he absolutely never said mr coke cash in our on the side of the in a stable traffic was at a crock the pressure washing the side of the road and no evidence of that whatsoever mr co that's why we say johnston is is not distinguishable in any important way mystical cash is a passenger the passenger in johnson was a passenger that was the rope and mr curly the passenger in johnson directing the driver to do what the driver did is there any evidence of that d in johnson i don't think there's any evidence frankly there's no evidence of that in this case it's for mr cooke cashews tour this is for the followed from that the rest of the twenty or thirty minutes of whatever whatever was on the video doesn't show it it's not about that some investigation into the pressure washer let's look at the pressure washer maybe take it into evidence this out of the other thing it's all about isn't doesn't mr gibbs a relative who i think is one of the gentleman who is within the vehicle or outside of the vehicle doesn't the officer ask mr gibbs ereli who who is the driver and he says i don't know he's a friend isn't i mean that would you can see that that's at least a suspicious answer to a normal person when you ask me who is the driver that you're traveling in a car with you don't know the name but he's a friend he's not a hitchhiker driver he says he's a friend i think i think that's a little unusual whether it's whether it's suspicious enough d when it when he was being confronted but state trooper to stop but even then what whether that's whether it's reasonable to find that suspicious it doesn't matter to our case i don't think because by the time mr coe cash is arrested and put in handcuffs all of those suspicions have been dealt with you know just the driver is robert evans the man talks going to say no that because of what doesn't so to me that the salient point in this case is at the moment of arrest because the case is about a false arrest so looking back at from the moment of arrest to the inception of the stop that's the more he knows what he thought was a car that needed help that need help he knows what he thought was illegal graffiti spray painting was in cash does present his i d before his arrest because did not they i think you said he had he knew all three of them and he put  through the computer again my question is the only way he knows the name of the person is if he accepts on faith another rd person's representation but i don't think he accepted it on faith because he ran it through the computer but he ran he ran through the computer the name that was given to him by someone else is but correct me if i'm factually wrong though i think that's factually correct ok but let me get back because i think we've hashed through a good bit of the blow by blow let me get back to my earlier question is would you explain to us pin point where the officer loses qualified immunity from the terry stop up to the point you've said it's the arrest was not valid and that's part of your argument as far as a constitutional violation where else is is that the only point that your case is based on is the a false arrest or is it based on something that happened between the terry stop and the arrest without the false arrest there wouldn't be a case it would be perhaps a technical intrusion that's not worth anybody's time but you don't have any problem then with the officer shining the light in the car and saying you need to produce an id i don't have any problem with him asking the questions i mean that you know always demand things by consent i have a problem with if you don't give me ideas i will put you in irons and take you to jail that's what we've got a big issue with so i think the point at which and i think in my brief i talk about three minutes into it he knows who everybody is and he's verified for himself trooper curley that it's simply water as things progressed he asked asked again for id then he then he runs the name his name through the computer again i hate to beat a dead horse on this but i'm trying to understand how he knows you keep saying he knows who she is but the only reason he knows that is because of what someone else has told him the fact that he runs it through the computer doesn't confirm that the individual in the car is adam kokesh correct possibly but evidently it did if you run them through the  if if the rd if the person who was driving the car said that's you know brian johnson in the back seat when he would have run brian johnson's name in the computer and what has come up would come up but he doesn't know that that's brian johnson or adam kokesh barkley he doesn't know when he gets an idea i can say we're here your honor here's my fake id with with my fake name on so he doesn't know that that's a separate question of the validity of the idea i mean fright so it was so then how much how much intrusion or we're going to we're going to sanction his name is coke cash or smith or adams or whatever it might be so i think a lot of these points that you're making your honor or are reasonable points of discussion but well that's the purpose of our larger program yeah exactly i guess they should  try to understand it but yeah there's always something more you gave me your idea of how this is a good idea with this idea expired two days ago you have another idea i've got a passport was what were you doing in romania two weeks well yet there's always something else that you can get that's more well i don't think he was your own i mean yes it's his book it's his project their volunteers or whatever i don't matter but i don't want to i don't want to pick i guess with you but he's directing that the larger project of the book promotion he's the liberty is a libertarian i think the libertarian nomination as president you know he stands up for spree speech this is what he does so yes he's directing it in some sense but in terms of the activity we're it but then once he's investigated what's going on he does and the arrest of mr koch cash comes after all of the investigation has happened and i doubt the point is this isn't about tell me your name because that's th case in these other cases it's about show me a document it's not it's not once on this video and i looked at it i mean how many times where he says tell me what your name is he says show me your i d got he got driver's license bro you got there's no there's no obligation to have i and and the record is what it is and i guess i need to marinate in it a whole lot more but you say definitively categorical categorically that arrest quote the arrest came after the investigation unquote wrote it down he says no no no the investigation was still under way when the arrest happened so what was your best record evidence that the investigation had concluded its it's the video your honor  like i can i can't point right now to the d to the time stamp but i think it's discussed pretty well in both brace when the arrests happen the investigation into anything cooke ash might have done that was a crime or any crime in terms of the water is over and done with from those facts so at the point of the arrest there are things that happen after that there's you know his you take it and let's take a picture of where this where the pressure washing was and another officer arrives so there's there's more that happens people just don't believe in the  video ends but i see him out of time here on but that's i stand by that position one last question you say you believe that the issue of qualified immunity would be something that the jury could be instructed on and would be on the jury verdict form whether or not this officer enjoyed qualified immunity correct i believe that's a possibility under the parent your instructions although i don't like it but i don't think on our record here today for the summary judgment is not qualified immunity mr mr cook as a passenger all right but it doesn't preclude qualified immunity what you what you don't know you know we could be back here again after a trial or not that's that's certainly possible yes you're on i think that you have done here and i want to make detained and several times you said we're not here to quibble about whether it's fourteen minutes or twelve you know that at the time of the detention what we're here about is the rest is what you've said several times so to the extent that the district court relied upon the problem on detention as a basis for the case continuing rather than for the false arrest are you abandoning their argument or do we need to made the decision to arrest him why was he arresting him and was it based upon probable cause he would he was arrested for violation of the obstruction of an officer your activity is you have to provide that to the requesting law enforcement officer and i think the video shows that that is clearly w so long as this interview was valid while it was going on but the investigation was still on do think the record shows that the trooper had not completed with a reasonable investigation into what that was on the side of the road also even if you didn't give him a charge for that right then there's nothing that says the trooper has to give you of pass to arrest him or charge him with that graffiti know right then and there as as a think we've discussed a little bit that statute may or may not cover the cleaning the what the message into there i think it the facts on the b t o show that it was reasonable to think that mr coke it had something to do with the power washing message putting whatever you want to call that simply because he or among other things he was standing right there it's not like johnson where d the individual fortunate to slee a passenger in a vehicle that would not have been stopped but for the individual who is driving the car that warrant out for and the office if you washer it's we're doing this this is a book tour that we are engaging in somebody else's he's a candidate for the president of the united states there are just a number of factors in all in th