this case is at its core about the intersection between the cardinal first amendment right to observe and document government conduct in a public place and the intersection of the right with the fourth amendment right to be free from right that's correct your honor and that would be an actual safety threat but in this case we only had a speculative safety threat and as you stated in your concurrence in nursery santa cruz who are we to judge i mean the it's not like they for the operation was the madison arm road crossing highway one ninety one and then headin further east on conservation lane mr reed was actually parked over half a mile north of that location and so the issue for the jury here is is a buffer zone of over half a mile away from the operations route reasonable and that is an issue for a jury to decide yes i mean do they also get to yes w know from the record in exhibit twelve is that later on the same day several hours later law enforcement did allow tourists in yellowstone park to stand within fifty yards of the same buffalo operation so why were tourists allowed to stand within fifty yards while mr reed was ordered to keep a distance of point nine miles away that's over a thousand yards away because of his the area where mr reid was standing where he parked his car on higher ground as well where it was unlikely that the buffalo would would go down to the rim as opposed to just cross at the lowest point absolutely around and there is absolutely no evidence that the operation was going to head toward mr reed's location at any time we know in fact that it's the route across madison arm road across the highway to conservation lane that was the actual route that the operation took a so if he had stayed in that location the operation would have passed without any problem over half a mile to the south of him was the evidence with respect to the call of the buffer zone and on how to pronounce but is that the point at which it stops stops the traffic on the main highway what's the point of not point nine miles away from where the buffalo are likely to cross your honor there is no point there is no difference in terms of safety between the along the road you know at what point they were stopped coming in from the north yes around at so after arounds took mr reed to that location point nine miles away he then waited a little while then  he did eventually stop traffic at that location at the point nine miles that's correct that's correct and as tell you there were curves right after that in the road which they needed to have cars slow down right your honor i don't believe there's any change in the speed limit at that curve but what the curve did affects it block the view of drivers coming into the valley there correct yes and it blocked mr reed's view of the operation so he was essentially completely excluded from viewing the operation and as your question judge fletcher i'm not sure of the exact distance from the south side of the operation but we do know that the nine tenths of a mile was where eventually did block highway traffic and the but you're but your basic argument both at trial and here is that requiring a parked car to move is different from stopping traffic absolutely may have different criteria as to when you're going to stop a moving traffic where on the road it's a safe place to do that absolutely and that what happened to mr reed is really he's been targeted be cause these guys don't like his organization not your argument absolutely and nine mile he could not view the operation if he would have driven south there is a rise and fall in the road there he also could not have viewed the operation from the south and we know because there was individuals following her view  no one has a video of the highway crossing they do not review of the book they have video the buffalo at other times of day there is no record that day of an accurate count of all of the buffalo that were involved all the government agents that were involved and whether any wildlife was pushed out ahead of the operation that was the whole point of driving that six cents a mile parking up and what was the i want to reiterate this was an open public forest service road that mr reid parked on that was separate from the highway so he picked this empty open for service road to park on to turn around and watch and that would have been the only spot that entire day where they could have documented an accurate count of the buffalo and accurate documentation of the government agents that were involved and for mr reed's no other vehicles were on that forest service road attempting to observe the operation but we do know later in the day law enforcement officers did allow tourists to film the operation from within fifty yards and that is why we say that mr reed's buffer zone that he chose which was six tenths of a mile over a thousand yards a jury could definitely fine that that was reasonable when law enforcement officers later in the day only enforced a fifty yard buffer zone and the national park service says own regulations only require a twenty five yard buffer zone for safety from pushed by the ones behind them and they'll be on the operation yes your honor and if we look at the video we see that even during the drive even during the operation we were pushing them the law enforcement officers later in the same day allowed people to still stand within fifty yards and that was a safe distance so we have evidence that day that different law enforcement officers in force are reasonable buffer zone of fifty yards we have the park service is own regulations that only require a twenty five yard buffer zone and then we have the way the law enforcement officers treated this political activist which was to require a buffer zone of over fifteen hundred yards and i want to emphasize that at the time he was arrested this campaign had provided eyewitness evidence which had resulted in an injunction from a federal court against the use of helicopters and these operations and so absolutely mr reid did believe that he was the low hanging fruit at this time because he had provided his organization had helped to provide evan since that had been used to grant an injunction against the same operation and that injunction was in fact in effect at the time that he was arrested but no helicopter were being used in this particular operation does separate out mr reed from every other member of the public because he was associated with this political organization that we could say was not in favor by the defendants at this time but in the fourth amendment if that's how you pronounce it was told by the supervisor he had to clear everybody out of there up to that point where he instituted the roadblock and so isn't relevant what he believed at the time that he was supposed to get everyone out of there even though the car wasn't on the road it was on a side road like mr reid no your honor because under the montana supreme court's decision in calcio the cameron when you look at the montana obstruction statute the inquiry is not about the officer it's about whether that individual was in circumstances that the inquiry is about the officer when you're talking about whether they have immunity right for nine hundred eighty three qualified immunity so that would ask whether this is a clearly established right and the city of counsel b cameron was clearly establish a lot this time and it did clearly establish that you have to show that the individual is aware that it is highly probable that they will actually obstruct something and that's why the key fact in this case is that mr reed never blocks the operation there's absolutely no evidence that he physically block the operation well he doesn't have to physically block it if he does something to impede the operation that would constitute o bstruction and we do know that officer lou rawls in the process of the ticketing he calls somebody to stop the hazing so it's stopped now whether it was stopped because of the action of or there was stopped because mr lawrence wanted to set up a record so that he could have a good ticket i don't know but we do know that it was stopped one it's a call to say hey stop because i'm writing a ticket to this guy who's point six defender really tyranny here because it's journey who has the initial encounter with him when he's right down at the road where the crossing is going to take place and apparently that was quite a it was a brief but quite a heated exchange and it's tyranny who says you to go north or know that just because a member of the public does not explicitly comply with the police or does not necessarily constitute the crime of obstruction could i reserve my remaining time for about oh thank  he was as he was just told to move north he was not he does not say henri i think he says he was not told to go outside the safety car if that's the right word for north of where on the ross was so he got to be on the evidence what he was  told probably missed most of your listeners and so sure but i know i've got hearing difficulties too so i'm sympathetic i think there is a conflict in the evidence as i read the evidence that came out in trial read says i was told to go north or go south i went north and i went point six miles an hour i was not told specifically that i had to go north of off he was told well that in turn you said it tierney says i told him to go north of the wrongness so we got a conflict of the evidence that's so that means that you can't rely for purposes of our judgment as a matter of law on what turn he says he read testifies that he was told to go north of long's he's that's not what i think you told me so where in the transcript does he say that because i read the transcript and i didn't see it your honor the  because as i read the transcript reid says he just told me to go north reed does not say he told me to go north of back because of curves in the road in cars coming through there at high speed and is there any evidence in the record that would demonstrate that mr reid could have struck the haze ad they get more predictable further down when the tourists get to be on foot and only fifty feet away fifty yards away i'm sorry this is us i'm apologizing for there was a sarcastic question you talked about the unpredictability of the use of wild animals well the unpredictability of the wild animals is not such that they had to keep the tourists very far away further down the road the advice later on in the day the tourists are allowed to be on foot that is to say not even on the ability of run away in a car fifty feet away from these wild animals so point six miles away uphill in a car with the ability to drive away i don't see that the safety of mr reed is really a significant issue now no unless unless you're in danger in the public further down the road they don't know where the bison are actually go across an obstruction of a vehicle in there could turn them around and it was with a safety matters what it was that of course that's what you say and the problem is that there's another way of looking at it which is to say that he was targeted because he was part of a group that had successfully obtained by the video and other met means an injunction against them with respect to the helicopters an very well aware of this he writes up his report specifically mentioning disruptions caused by this group so he knows exactly who this guy is and the argument is that the safety concern is a smokescreen can you say as a matter of law that there is no thing there's no substance to the argument that this was a smokescreen for preventing them from exercising their first amendment rights because of the what this is worth a matter of law this is in all of the this is basically basically summary judgment i mean it's a judgment as a matter of law at the end of plaintiff's evidence so we have to take all of the evidence in favor of the plaintiff if there's something disputed we have to let it go with them and say it should have gone further to trial are you ok so far in terms of hearing yeah yeah reasonable  argument that the other side is making is that their evidence is sufficient to show if believed that the safety concerns were a sham and that m was targeted because he was a member of a group that had succeeded in altering the way these hayes's were conducted and it seems to me that there is some evidence to support that how do you respond zone and they had to stop the is in order to get him out now you know i was ready for you know or you had to do the journey if memory went to the jury was that if the you know everybody was you know prevented from going into this no drive zone your honor i you know that in the video that we've been or deuce it was defendants exhibit twelve which was submitted to the ninth circuit here  you can see some tourists that are looking at the watch in the haze of the cross of the river and stuff like that you know and have nothing to do that was way beyond where the highway was the the gander  is that you know when real parkers be eckel within the safety cord or which was being established over one ninety one he was not engaged in any expressive conduct protected by the first amendment rather he was simply defying lawful instructions that for safety purposes if you pointed out that he'd not locators be eckel in that particular area there is a nice circuit decision you don't vs city of los angeles two thousand and eleven decision which the plaintiff was arrested for refusing to comply with the law enforcement officers orders requesting that he rianna her a cold or in a traffic stop the play of challengers arrest on the grounds of from the entire case that mr reed was intending to engage in expressive activity the activity of watching to make sure that this haze is done appropriately is not  protected by the first amendment well that's what he was saying and i informed various persons city of seattle judge try recognize without any away aberration that there is a first amendment right i had gone south i would not have been able to observe now that may or may not be true but that his testimony well it's undisputed that he could've if he chose to go south  nearly tailored correct correct and they were i mean it was a point nine mile no drive zone it's to protect the traveling on you know they're there not to i think one of the deputies are going to reveal well wage and describe these hazing activities as trying to herd cats i mean they turn around and highway one ninety one is the highway that those tourists are standing on the shoulder of so it's actually the exact same highway highway one hundred one actually make sort of a ninety degree turn and then goes into the park so it's the same highway they're standing on and the same river and the same buffalo and the same herding operation there regarding the herding cats comment when agent tierney actually testified in e r one twelve was the most part you're agent tierney's testimony quote that was a pretty simple day so actually it was a pretty simple herding operation and i see that i'm out of town out of town out of time so  docile caps on that day they were hurt a bull cats more like cows more like buffalo on that day on that day yes it all so all other days are different right and so we have to look at whether there is an actual threat on this day not a speculative threat for the purposes of the first amendment and unless there's any further questions i do see i'm out of time thank you