good morning welcome to the united states court of appeals for the sixth circuit i like to remand you if you represent the appellant that it's helpful to us if you tell us how much time you want to lose or for a bottle even if you've only already cleared it with the clerk we'd like to know so we that the defend summary judgment as to all claims except plans false arrest imprisonment claims finding an officer she did not address false arrest in his qualified immunity argument however examination of defendant's initial motion for s a fourteen year old girl who you know sort of mal to him whether he heard it or not is question and didn't really the best will in order to call him collect her younger sister which she explained to me i'm now out that the those are the i think the most material that that support her version of what happened and  festival in response to an officer needs assistance call and it wasn't just him being dispatched it was multiple agencies you've got green hills wyoming to handle have a very have anything to do with the arrested this particular individual it does with respect to having probable cause for the arrest and i'll get into that with respect to the action so he arrives on the scene there's a number of people shadowboxing he is tasked with crowd control and dispersing the people and at that point that's were you then look at the facts  favorable plaintiff or she testifies that officer schuler doing his lawful do to try and disperse the crowd and get these people to leave the festival at eleven pm eleven thirty that night tells her specifically that she needs to festival first time at that point he tells you she begins to walk towards the exit and at some point she stops she stops right before leaving the festival in order to call her sister and officer schiller once again tells her for a second time you need to leave the festival i mean there's also taking the facts most fiberboard her and there's evidence he grabbed her arm he got her cell phone wife from work i mean what would what would what what part of her kind of keep the bad this poor in iran well he's our condo or conduct first of all we're talking this isn't just ten people we're talking this is forty to one hundred people it's loud there's kids pockets of kids all over the place it's chaotic there's already been one fight and later on there's actually fights occur after people are pushed out of the festival but they're trying to control the scene  shadowboxing they're trying to go ahead and get these people out of the festival because it's over and she's not complying and the officer does he want to go ahead and pick on a fourteen year old girl you know she's creating such a disturbance  there was probable cause that right that yes but it the night in the district court normally in these cases we try to figure out what facts the district court of soon there was a there was a genuine issue but we don't have that here because the district court said you didn't brief the issue of whether the facts establish that he had probable cause and i was going to get to that beginning where it is that's just wrong i think that would be targeted or we we did raise that they  you make these up i'm not asking will you raise false an immunity i assume you raise a qualified immunity because you said that diversion precluded any further examination of whether there was probable cause i'm just asking whether you made the arguments that you're making right now to the district court because you're asking us to reverse the district court on what the district court at least would say you never presented to the district court which is an argument that apart from the diversion issue there was probable phone plan to testify she wasn't even looking for surely when he issued those orders and image that was even possible that after she were told her that she didn't leave she was going to be arrested those facts don't speak to the excessive force cla claim they speak of the probable cause issue that it existed and then i further go on the motion further goes on to say that then addresses the disposition of the criminal matter but ultimately at the end it says was in the middle of a chaotic situation on july twenty eighth two thousand and twelve certainly his actions and alleged minimal uses of force were objective lee reasonable given the totality of the circumstances which is what the approach which is utilized to establish prob e cause and it was just an address an excessive force that point there'd be no reason to say certainly his actions are in separate it with minimal use of objective force at the end if the motion states that the taliban is circumstances on july twenty eighth two thousand and twelve established the actions of officer james sheeler were objectively reasonable and did not constitute a fourth amendment violation it doesn't spell out it was only in regards to excessive force violation it talks about any violation and that is consistent throughout the entirety of emotion you agree that that there was no probable cause to arrest or for disorderly by your well i would do all  away twice by the arresting officers from the scene of the arrest in applauding that decision the court stated that under these circumstances a trial court this truck were properly found that the violation of r c twenty nine seventeen point eleven  because you don't you're not just done with respect to what is probably cause only for disorderly conduct you can also probably cause can also be established and need not be even closely related to or based on the same conduct is an offense at the arresting time at the time of the arrest in this case official obstruction official business what was the other charge which clearly the officers there he's called actually he's performing off duty she's not complying below and this failure impacts this well he did not actually brief it yes so as you mentioned there's these cursory assertions of qualified immunity against any constitutional violation and you know if we look at the most for summary judgment there's nothing in there about the issue of probable cause it's all about excessive force except for this collateral judicial stoppel argument which we think the district court has already addressed in full and i can talk about that in more detail if you'd like but there's nothing in that brief that says that looks know there's nothing about probable cause except to the extent of you know there's one sentence in the reply brief that says the aforementioned arguments have already established probable cause but he doesn't explain how it's just a conclusive you know cursory legal assertion with no actually you know the corporal never actually denied qualified immunity and that's to say that there was no constitutional violation i'm sorry there was enough evidence that the issue was raised as to whether there was a raise the argument getting into the i'm sorry we could just simply say that they have raised an issue that we don't need to address those that wasn't raised below without getting into whether we have jurisdiction to do that well i think you know you have to have  believe it goes back to status quo ante in the district court and the then it's up to the really the district court to say did he raise the issue in a timely manner that's my understanding i'm not sure how you guys would view it but i want to remind score you know the  our function is to review the case present to the district court rather than a better case fashioned after a district courts and favorable order and i think this case really fits that fact pattern you know below the chambers has a twenty page limit for brees both a defense priesthood exactly twenty pages well perhaps it is technical but you know these technical rules matter they're there for a reason and you know not only did he not exceed try to exceed the page limit he also didn't move to reconsider in light of qualified immunity and one of the cases he cites for support klein be along that's exactly what happened the defendants moved you know move for summary judgment the court tonight it's they moved to reconsider in light of qualified immunity the court denied again and then the district in the sorry the circuit court said we have jurisdiction now because it's been squarely placed before the district court we can talk about this so he's basically arguing that the cursory assertion without any development is enough to force the district court's ruling and we just don't think that's enough because what it does is encourage is exactly what happened here i can just put one sentence in my brief and cover myself and then we can have the six circuit to deal with this conclusively without any district court determination and i think that kind of gamesmanship is really uncalled for we shouldn't be encouraging that as a policy matter this court exist to correct errors not here issues for the first time and so declined case is probably cause that's the entirety of the core of claim and so what is probable cause he didn't even define it for the district court it's exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed and so he's trying to tell you that you know these facts were she wasn't compliant if she said some vulgar language those things as if it were checklists you know check the boxes and now we have probable cause you know he has to actually tied these obstructing official business and the elements of trucking official business are no person without privilege to do so with purpose to prevent the struct or delay the performance by a public official of any authorize act and the public officials official capacity shall do any act that hampers a public official so he has she has to be acting with purpose to prevent obstruct or delay and she has to do an act that hampers or impedes and neither of those things happened here if we look at the facts in the light most favorable to the plaintiff and we don't dispute these facts s t was a church festival were brief one punch fight had occurred dana her friend says it was loud and cafeteria like but you know what church vestal isn't allowed in cafeteria like s t approached officer with info about this fight loud she was talking to dana does say that she didn't think the officer overheard anything and so you know we can draw favorable inference there in that you know she wasn't directing it in any loud volume and i want to address one thing you said earlier  that you know hearing over hearing her or approached her demand she leave the festival threaten to arrest or didn't explain why that's the second time so there's only been two times that she's been asked to leave the festival estie told him she need to call her sister and pulled out  not a threat and then dana testified that he didn't do anything wrong so we take all those facts together all we have to establish probable cause according to the defendant is that she used vulgar language and that she twice ignore festival because she wanted to call her sister and i said you know he makes that seem like that's a checklist of things to check off and then we go on a probable cause and he tries to support that proposition with all these cases like he mentions to the fans but if we look at all these cases in the to tell you the circumstances which is what we're part due for probable cause we see that it's a lot of different things combined together like running from officers combined with prolonged vulgar and abusive language outbursts physically obstructing the officers interfering questioning of witnesses refusing to calm down when asked refusing to answer questions for example in state be fanned the case you cited earlier charged with when she went to court she was charge of disorderly conduct in the indictment that's the only basis for the charge and there's no evidence that she was being vulgar and use of except for his testimony that's not i think that's the proper basis for going to qualified immunity we have to be looking at things in the light most favorable to her and there's evidence where we can draw the that she wasn't talking in a loud manner she was talking to her friends and furthermore sorry state fant it's not just they said that persistent conduct can lead to the to prob back thirty four yards away again and he comes back again and so that's much more egregious than just standing standing they admit standing by the exit to the festival it's not like she was in the middle of the festival interfering with think she's right by the to tolerate a certain level of uncooperativeness especially in a free society in which the citizenry is not obliged to be either blindly or silently obese into law enforcement and we think that rationale holds particularly true when juveniles are involved because juveniles don't necessarily understand the con you know the consequences of their actions do you have a question i'm sorry ok and furthermore because he talks about the you know the boldness of this language then we have to consider how the first amendment plays into this case and i think it's pretty clear from the case of the side in the brief in the case law that we gave the twenty eight j letter that the first amendment protects the content of what she was saying to the extent that it criticized the police and furthermore this case interview larry and has some facts that are analogous to our case in that case the truck passenger or a truck passenger sorry shouted fuck you and made obscene gestures towards abortion protesters as the truck drove past the often officer pursued the truck and arrested the passenger for disorderly conduct there was no evidence that anyone was offended one in knowledge of behavior except the officer just like in this case the court held the speech was protected that it was not fighting words and there was no problem cause so i think this case love makes it very clear that we have to take the content of speech out of the picture and focus solely on her volume her demeanor her actions in the to tell you the circumstances and all we have is that she said fuck the police and that she twice ignored demands to leave and there is no offense that fenice point to you word that meets the elements and i think you know if we look at that idea that we have to meet the elements in offense to establish probable cause that just ties back into why this jurisdictional issue is important i mean if the case is really complicated because if you don't tell the court what offense you've established then is that the court's obligation to go through the entire code and try to find a statute that lines up with the facts and he has to provide some of that analysis court  just to sum up the defendant's version is supported by no other witnesses in terms of this you know she's throwing a three year old temper tantrum in the middle of the festival and none of that is supported by the other witnesses so the core of this case is really an credibility determination that are up to a jury and in fact that the city of columbus circuit said the existence of probable cause a jury question unless there is only one reasonable determination that is possible and we believe there are multiple reasons or potations and so this case in this bill should want to talk about plaintiff wants to talk about how others gains in the ship with respect to not raising the issue qualify me with respect to phosphorescent they were somehow prejudiced with respect to that failure so to speak but they clearly weren't problem is out back at that brief and the problem is that a fair reading of the breed is that you did climb there was probable cause but not because of the underlying facts only because of the juvenile court disposition and that was the argument that was rejected and so i mean he has a point that you know you've taken a totally new tat with the court of appeals and we're supposed to reveal you know issues that were decided in the district court and you know it's not about prejudice to the other side it's about the judicial resources at least from our point of view i mean it certainly has something to do with that but it also has to do with the judicial resources required to review and prepare for such a case when the the prudent thing might be to the to say well you know i lost on that i'm going to continue to go forward in the district court i mean there's been a good deal of expense to the parties accompanying the appeal there's certainly been expense to us in terms of getting ready i mean so i mean there's something to think about there i would say though that you can't say that i didn't raise it or it was and raised in th and in the brief and i think factual i will point to you is it not raise once it's raised the question of whether it's raise questions whether it's fairly presented to the district court and i feel the same way that probably more strongly than the judge humans just articulated because in addition to everything she said you're talking about telling a district court you were wrong we're reversing you for right reasons that were fairly presented to you and you can say well that didn't hurt that didn't hurt the parties but it hurts the system when we don't when we have to decide something for the first time we we take a careful look at that that's how the district court would for instance evaluate whether the statutes were probably arguments you're making now which candidly they have some force but the but you tell me here's a great argument but we didn't make it to the district court and i'm not arguing it here to affirm on alternative grounds i'm arguing it here to reverse the district court on the ground that wasn't one of the arguments that wasn't even presented to him that so that sort of way to litigate case i respectfully disagree but as far as the fact that it was raised once it's raised the burden is on them to show law because of the juvenile court disposition is not the sign as raising the issue you sought to rise here i think if you look at the