they were having with the jackson police seem to be something that could be worked out if they could just find the right person to talk to there didn't seem to be any reason as the saying goes to make a federal case out of it but tries they might they could not work it out time and again throughout two thousand and eleven twelve thirteen fourteen up to the presence of what were you trying to work out on another truck worsley how would you define the problem between you and the police that you were trying to work out work out the fact that the police continue to arrest and threaten to arrest july of two thousand and fourteen after numerous attempts to one with the city have been promising discussions we've actually sent a draft complaint to them of in hopes that this would spur them to say get serious about discussing and finally a new the city had suggested that we will be yes we will talk about this yes we'll talk about this we could not even bring up to talk about it about what was that why why did the police continue to arrest people who were not blocking the sidewalk based on a policy that said simply that resting your sign on the sidewalk was per se an obstruction of that was never any hope for negotiations or a little concern we did in your honor we did hope that that by again by don't let them touch the ground it was a totally irrational hall it was don't let them touch the ground you cannot you must suspend them in the air you can actually rest them on your shoes but you can't let them touch the ground it was in there is a series of events that seemed sort of disconnected in you know ban them period of time but it's not every day and the threats were made by the police and then  you know once a once every other month or so they might arrest somebody they might even bring charges and they drop the charges not a single person has been penalized for this activity they know because the charge times however in this case in addition to the record we have the city's own representation is particularly in this court in their briefs where they state for instance at page forty two of their brief a large six foot to the tall sign resting on the sidewalk restling aside and you're saying contact with the ground constitute resting aside correct and and then the the ironic thing is that in the we also see an example of the same problem that that my clients of them having out on the sidewalk with the constantly shifting applications of the law on page forty five they said they are not allowed to carry six feet tall signs on a public  off the sidewalk and put down their signs when in fact what is constant told them you must get up on the sidewalk and hold up your sides well let me moment let me step back in a minute because the court truck court indicated confusion about exactly what your theory is is it your theory that the mississippi statute is being unconstitutionally applied is it your theory that the statute is unconstitutional or is it your theory that there is some policy apart from a statute that is being like selectively applied to your clients i do the latter your honor i don't think this policy is applied to any other pic and in fact the city said on page thirty six and thirty seven of its brief that probable cause always exists for the officers to arrest the plain these plaintiffs for obstruction because they have the quote known tactic of sitting in lawn chairs and  striking and holding signs and this is this is a striking admission because if you look at that part of their brief they say officer james have probable cause to arrest to the point of on fondren place on a certain day because officer  and we could have a discussion about that but there is no such law and the problem is the officers are simply enforcing a policy that you will see someone's holding a sign and it's parallel to the sidewalk they're not taking up more than one or two feet not to get more than their own up on the sidewalk and yet the police call that an obstruction and again because of this rule that they have created that just deem certain things to be a structure that don't require them to continue to warm or not they don't require you to continue to walk with your sons in terms of like a picket sign not routinely there have been some more of the kids will move along you know please sort of runner cause you can't just on people that want to get into the located near the entrance or a parking lot and so people that are going to go in there must use this five no no because they park in the clinic parking long and walk in there and they never have to go on the public s one policy and the other one is what we have heard is the deemed obstruction policy that anything on the sidewalk other than one's own two feet counts as an obstruction and this could be a lawn chair or a letter and again if the city wants to pass a law  again i mean two things number one who is the policy maker i mean where how do you get this into the pattern and policy type cases that's where the city's own admissions come in your honor i think that's that's where you see in the cities which we don't see until the brief because they were not at making those submissions or at least the truck or didn't find their research admissions correct that's right and that's why this process is so valuable and i think it's important because it is sometimes very hard to pin down a policy again what kind of injunction would you would you see very simple your honor we're not looking for a get out of free jail free card or anything like that we simply that the state and local obstruction statues be enforced only when there's an identifiable person or vehicle who has been or threatened be unreasonably hindered that's all the ins are saying struct n what do you have any state law it's i mean state law could provide that there would be an obstruction even if not an even if nobody was walking by because somebody might walk  by i agree on it but what we have here is a history with the city of enforcing these policies only against the plaintiffs and and this is our the second go around for the plaintiffs in terms of have to deal with the police as applied challenges and i guess just a constant the obstruction statute it's got to be clearly constitutional brecht's a right but boy you just i asked you before if it was an ass applied challenge when you said no i'm maybe i posed my question wrong but i think you give me three choices and i will always number three what is your will tell me again because now you're saying it is unconstitutional afraid so yes or municipal policy and unconstitutional municipal policy that's that is what i'm saying yes you're right and that's and this policy doesn't consist of arresting people and fining people it just consists of harassing them right for all practical purposes well arresting them by threat of arrest another is right you talk about there being times and nothing seems to happen is because there is you know after several years of being brought into court and charges dismissed or files like what your brief said was one hundred thirty three something or others it had been number one hundred thirty three the times that the police had been called maybe oh that was like calls out to the clinic yes i'm sorry there was or those were calls out to the clinic yeah but that were on that and then you and and and then there's also a classification i guess of threats and how many complaint in the papers except for those which we deliberately did not sleep because they are still pending in in court what you know that over the course of four years and then i mean threats it would be very and be real brief if you can answer real brief there's something about it dissimilar treatment with respect to merchants who can put signs up in front of the stores now this little sidewalk t chew expression describe to us doesn't sound like there's other merchants that along this sidewalk right so what are you talking like in a different part of town a different tables and other things are on the mannequins or on the other side of state street that on the clinic side it's on the corner with fondren place where the entrance to it is and that is that that is the street without the sidewalks except for this one anomalous stretch of policy what we're talking about here is j p enforcing mississippi's obstruction statute even if the court accepted plaintiff's assertion that there is a stands up policy there has been no showing of a policy maker who adopted the policy or knew about it and that's one problem created throughout the jackson police department also as judge jones noted this is an as applied challenge and the district court  was correct and finding that the plaintiffs failed to demonstrate that someone a spouse seeing a different viewpoint was treated more favorably for filing your honour's this obstruction first of all of the sounds of policy this there is no such policy the police department say you have to arrest this are your toes you're going to be arrested i great that sounds ridiculous that is not the case sanction of policy and that the police had told them on more than one occasion that if they put it on their terms it would be it would meet the standard they were demanding if they put it on the ground it failed to stand and they were will i mean they can yes but that's called a credibility call it the officer who says i didn't tell the man in the plain of says yes you did and she quotes from your brief which says a larger a frame ladder or a large six foot tall sign resting on a sidewalk is an obstruction no matter what the contents no it's some kind of what you put in your group is that a policy is that what you're  stating that a large six foot tall sign resting on a sidewalk is an obstruction no matter what that was testimony from commander mcgowan has no record cited here ok so commander  bob days of laborious testimony on this and this matter the trial of the district judge was in the position to weave through all of all of the testimony and to determine the truth on the veracity of the witnesses compared to the case and in fact the under the district judge fine can we get back to around the story on the truck just remember ok well the district judge did find that the plaintiffs failed to make a showing that there is a policy maker in this case you that in this case the plaintiffs have the perfect opportunity to demonstrate that in this case pro choice what you're ok so what you're saying is that he treated him about it at the abortion clinic equal in terms of what kind of demonstrations they could make and that's quite apart from the fact that in other parts of the fun area and with earth respect to other subjects the treated them different so you're saying that they were equal treatment with respect to people that were involved in the abortion question but that the and in other parts of undress and that you in your argument used that be treated them equally and there was no discrimination among and subject matter because you treated  whether it's applied differently really isn't the test because the point to me is whether it should be applied to people exercising legitimate first person women activities but before you get to that question of discrimination i think what the judge said here is he talks about in order for you to establish your customer practice you must have a cruise system widespread practice that's a page five of the transcript in other words you must identify the policy practice comes from humans connect the policy to the city and show that the injury occurred because of the execution of the policy i'm not sure if we've met the threshold on any of those things a this point exactly so that i mean he doesn't really find that there's not a policy he just doesn't find enough evidence of one for a temporary injunction exactly and that's the standard here is whether or not  a likelihood of success as to the merits of their case and the court found that there simply was not enough evidence to issue injunctive relief in this matter further there has been no testimony or chief was called at the hearing of this matter and the plane has failed to ask him anything about a sounds of policy the only thing that they question him about was whether or not there was training in this case and that sign get that sign on your feet repeatedly rudely and that's what they're saying now whether it's enough i don't know but that's if that's not harassment i don't know what it is but your honor and the way the plaintiff it does sound like harassment in their briefs it does sound like it's some sort of torture mat that we're if you have the earth sign up two inches off the ground but you know hold it up as far as long as what it sounds ridiculous i agree and that but they but the if the evidence i mean i'm not saying the judge is clearly erroneous because i am and read the record but the fact is that there may be a legitimate dispute as to how you interpret that language of the statute about wh obstruction is if as they say not a single person has been prevented from walking down the sidewalk and that is not in the record at well in the record karen gilder caring gilder who is it was on crutches she has a  k ok she has a business there and she has been prevented from walking on the sidewalk the plaintiffs are not exactly correct in saying that this is a rule and on a rural area but an area that is not traveled state street is one of the from the street is about three inches of carp now if any pedestrian decides has to travel around there there is a very very real risk that either the pedestrian or someone having the sun has to go out into traffic and that is a that is a major traffic safety and that commander mcgowan testified that that is the only reason that they are called out there is to monitor the safety of the pedestrians on the sidewalk and also to make sure that these large  are the claims under the if not the claims are that the officers can have a it were arresting people when there was no probable cause to do that and thereby violating their first amendment rights because of the nature of the arrest in terms of their damages yes  is against a police officer yes all right and then so once you filed your complaint then you go into the court and ask for temporary injunction are described your complaint as full permanent injunction against the conduct of the brief we laid out the evidence in the brief that was largely undisputed about arrests arrests arrest arrests there was no structure there was no structure there was no structure in that that i mean that they point to one incident that happened some other time where i want to play no one was one was in fact cited much less arrested until after they had there was warnings in other words if your position is there's no one it said they got arrested for putting a sign on my foot and if in fact there was evidence that they were warned repeatedly is it your position is that even if you're warned repeatedly that you continue to have a right to lay your sign on the sidewalk and leave it there even if the police are telling you don't leave it on that five foot sidewalk your just so you can just leave it there i'm not sure wh you're not saying that they put it on the ground and they got arrested for it yes i mean me having a hold of it having a sign resting on the ground yes they have been arrested for that but you forgot i think it's like twelve arrests total that you refer to ok yes you  e and i'm saying there's a pattern of arrests yeah but twelve arrests in four years and you're picketing at least two days a week but you're in addition multiple threats and the fact that understand and they don't have to be they should have to be  let me ask you a question in my short experience about labor law picketing it seems to me that the way a company would make its case that is to say the plane of the ticketing and gone too far would be to videotape the actions that were occurring during the picketing and were there any kind of you know wreck or day sions of these events so that we could so that the court could have seen police officers  raiding these people and threatening them over to their word the plaintiff's word against the officers were there is there is video there are video and photographs in the record and there are video of for instance on state street court but i would like to point out one other statement in the in the city's brief where it says on page seventeen plaintiffs now argue that commander mcgowan is individually liable for creating a signs up policy whereby the plaintiffs  cannot rest large six feet tall three and a half feet whitesides on the sidewalk this is not a policy created by commander mcgowan rather this is in a force meant at the state of mississippi so struction statute again we see here this is the city's policy and the city is admitting that resting assigned resting a large sign on the sidewalk they consider that to be purse a violation of the obstruction statute and that's not what the obstruction statute says is not what it means and it would be a violation of my client's f