we'll hear you i would like to reserve three minutes for a bottle and i would like to begin by addressing the claims against the city defendants here and i would like to spend most of my time addressing those claims those claims relate to the arrest  late during a peaceful new protest in downtown portland it's important i think to understand the context of the arrest and the context of the protest this was not some mindless act by mr me like this was a considered deliberate thoughtful protest mr meekly arrived in front of the federal courthouse in downtown portland he set up next to an engraving of a quote by thomas jefferson the quote is that the boisterous sea of liberty is never without a wave missile being clay was dressed in a suit and tie he had with him sign making materials his i pad a violin and his service dog bella removed his suit and he laid it out on the ground next to him in front of the thomas jefferson quote in a symbolic straw man like metaphor and his intent in doing this as he testified to his deposition was to convey a message of transparency in government played his violin and he testified that he brought his bio violin with him because the violin is a symbol of american patriotism and he made signs with political messages on them so your your contention in this case is that the what case would have made it clear to the policeman that they were not entitled to arrest somebody standing naked in front of the courthouse city of gate one is what i think is that the only case because i'm having difficulty with that one first of all it's an intermediate appellate case in oregon it involves the oregon law and second it says the law is not facially unconstitutional sometimes it's constitutional and sometimes it's  sometimes it's constitutional to arrest somebody who's in the nude and sometimes it's not so why would a reasonable police officer on the basis of one intermediate case and i respect  but one immediate court of appeals case why would it have been clear to a reasonable police officer that there was no violation of the law here so it wasn't in the main a court of appeals case it had been on the books for more than thirty years it dealt with the the same portland ordinance that was at its height and said the ordinance was not facially unconstitutional that as the supreme court has recognized merely being nude in some circumstances is a first amendment protected activity dancing for example i guess posing for of for an artist but under other circumstances where it may interfere with the public's enjoyment of the public square it may not be i don't know whether this one was or wasn't based on those cases how would a reasonable police officer know that and i think part of the mistake here that the district court made and that the officers may have made is that they look to federal meekly was every new protest in the world is now ok in oregon under that statute it's not necessarily the case that every new protests like this tell me how would a police officer who is walking up to your client be able to discern between the protected new protests in the unprotected new protests so the starting point i think is that gatewood specifically identifies disrobing in public to protest as an example of protected speech and in this particular case there were numerous trappings of a protest here this is this was not as i said just not an individual who had just wrote down a whim and later tried to justify it by saying that that he was protesting could your client come to this proceeding today and take off his clothes to protest that we were happy that we were hearing this appeal well i think that the protections inside this courtroom are different than the protections outside on a public walkway so you could do it out front but not here he could do it out front if it was part of his protest and if it was some intended us balak communicative activity go ahead looked only to first amendment case law so gatewood says article one is broad section eight is broader that difference is rooted in the text of the provision it talks about laws shall not prohibit the freedom of expression whereas the first amendment of course talks about speech in state versus henry dorgan court made it very clear that in interpret in the oregon constitution article one section eight first amendment cases were not necessarily informative and if a court would independently analyze issues under article one section eight even if the statutes had already met or so and survived first amendment scrutiny so that but that's that's a fourth amendment claim is it not another words if if your client was operating in that gray area if you will broader than the first amendment but within oregon constitutional rights then there was no first amendment violation here in arresting him correct the the primary argument on appeal relates to the violate the fact that m does it not the first minute claim doesn't necessarily fill the first amendment claim is a higher bar than the right now and that's why i was debts when i was saying yes if you're in that area past the first amendment but not but inside the oregon constitution you don't have a first amendment claim that is correct if we're in that area now we don't concede that we're in that area and i believe that the ok well but to that's why i come back because you keep saying well the district court made a mistake because it kept looking at first amendment cases you were making a first amendment claim so on the first amendment claim tell me what case would have made it clear to reasonable police officer that arresting your client would violate the first amendment and that is correct i am emphasizing what the court looked because the only one of the claims here is a first amendment claim and the court's decision to analyze under the first amendment and just conclude that the rest was lawful that infected all the i don't understand your argument that you're separating the fourth amendment claim of the first amendment claim  now ask me to concentrate on the first amendment claim as a judge fisher has pointed out gatewood may not help us on that because it turns on the oregon constitution so tell us what federal case from this court of the supreme court would have made clear to the police officers that day that it a rest would violate your client's first amendment rights i don't know that there's a case directly on point with respect to the second for that's true you know or in your case close well i think  the issue here is is about that this was decided in summary judgment and end up with is a qualified immunity issue here their use these these police officers are entitled to qualified immunity on your first amendment claim unless some federal case from the supreme court of this court would have made it clear to them that they were violating the first amendment by arresting your client so i'm i asking what case you would rely on to defeat their qualified immunity yet and to be clear on the first amendment i think the best case for this is spence because what spence says is that what's required is that not that most of us understand everything but the most viewers get the drift of what the protest is about what the new defense you know with a new protestor i'm sorry spence deal with a new protester spence's not a new protest so we don't have one we said at least there has to be one of the cases don't have to be exactly the same they have to be the kind of similarity that a police officer a reasonable police officer reading to decision and i know that's a fiction but and reasonable police officer reading the decision would have said i can't do this because the first amendment bars it i'm not like my colleague i'm having trouble finding a case i read say i read alice versus dangan alice versus danglin pretty quite pretty straight says it's possible to find some kernel of expression in almost every i don't know i didn't find it so maybe we go to the back to the fourth amendment is the best thing you've got on the fourth amendment portland versus gatewood what is the case that's the closest and the sum of all tell me about gatewood a little bit i know what they said in gatewood but what did what was the ultimate holding in gatewood the open holding was that the statute was not unconstitutional because it was because they read it in a way that it did not because i didn't say that what they said was as applied to public nudity or nice exposure not intended as a protected symbolic or communicated act the statute would be facially constitutional but then after they got through saying that they sent it back didn't they then especially explicitly reserved their judgment on not what the subjective standard should be but what the object of standard should be is  what they did they said they sent it back and they said that this is the question of whether particularly for my question didn't they send it back and explicitly reserve the judgment and it was especially on as objectiv standard that should be set not just because the kid says the as intended so ok but is there an objective standard for such intent and objective standard for such  that that doesn't set in the standard for me at all for this particular situation except the police officers have a chance to look at the scene and say what is there that shows me what he's what he's fighting about what he's per protesting about what he's doing isn't that all it says so it says that that symbolic nudity is protected and it says that whether or not the nude of the is symbolic in a particular case is a question of fa and measured against what an objective standard about what he's supposed to do not just his own subject of standard so when it's an objective standard then i have to look at what happened at the situation if i look at what happened here your client didn't communicate a message at all except he was nude what message did it communicate he must he communicate a message about transparency it's not just a minute i didn't even see that one transparency because he took obvious close it's not just that he took off his clothes as that he laid his clothes out next to him on the sidewalk in a straw man like manner and that was a detail that the officers noted and comment well what is that what is that what would an objective observer perceive from the clothes being laid out neatly rather than thrown on the ground so what they would perceive and what officer paid in fact it perceives that they  in range in the figure like person i know you know i'm not accepting that i'm accepting that they're arranged in a figure like a person on the ground i'm trying to be an objective observer and i see a nude person standing next to clothes lying on the ground a the figure of a person and i understand that the message that's being transmitted is is a is about transparency and there's no requirement for laying out the clothes doesn't really help because being naked is have perceived so i'm looking at my notes to see how to pronounce it so tell me what tell me what why you think an objective observer the policeman would have come along and said my god he's engaging this he's engaging in expression not really nudity the this city has not identified and i've not seen anything in oregon law requiring that that the objective observer has to be able to draw a conclusion under oregon law about what the protest i mean i look very carefully to try to find out then what the standard would be and it is and then the subjective standard gatewood puts it right out there i'm reserving judgment says the judge not the judge the judges on the explicit i'm rigs erving my judgment explicitly on what the object of standard ought to be and so at that point i'm saying to myself well what would the in one case that says that it was really well how high preachy you would like to answer his question judge fisher but i would like to have him give me the language because i couldn't opinion and where say that police officers in forcing a statute should be aware of the of of the unconstitutional reach if you will of the ordinance because of an intermediate court of appeals opinion is there some case that helps me on that i realize this is a fourth amendment claim not a not a you know not not a first amendment claim but it's a little bit unusual to say we have a statute that immediate court has said in dictum would be unconstitutional if applied in certain ways and police officers should therefore know as they're enforcing the statute that they can't read that they can't arrest people under it for being nude on the street on the street if they're so tell me can you help me with that is there is there some other is there some case out there that says that in forcing state law police officers should be aware no of the holding of a case but of language in a case that would suggest that what they're doing is is improper so you're asking if there's other case law in oregon that's her anywhere never would your fourth amendment argument as i understand it goes like this even if i didn't have a first amendment right you didn't have probable cause to arrest me because even though my conduct via my conduct might appear to have violated the statute there was an intermediate court of appeals decision thirty years ago that said well that said in dictum and i've kind of agree with it that that certain conduct certain protesting conduct in the nude may be protected by the you by the oregon constitution and i'm trying to figure out what a police officer is supposed to know under those circumstances because that's a qualified immunity analysis what if what would a reasonable police officer now so is there any case well out there that helps me with that i think two things help one is that the city of cambridge specifically mentions disrobing in public to protest as something to protect it and second that this is this again is portland and the officer who made the decision here was officer was in charge of the downtown special events but he also went back and consulted with the city you know with with a lawyer he did this and you know now the lawyer may not be as smart as you but or put it sort of it sort of makes it hard to believe that every police officer should have known standing on the street there that this was something he couldn't arrest somebody for that's why i mean he's in this consultation with a lawyer i actually think doesn't help him in this case because if you look at his declaration about what he told the lawyer  this is a thirty six paragraph eighteen he didn't give the lawyer all the facts and i'm sorry that's a paragraph nine of his declaration he did not give the the city attorney all the facts about what was going on what he told the city attorney is just that  court's decision and diction versus well what county if a officer does not provide all the relevant facts of the city attorney in the city attorney's advice cannot be relied upon thank you thank you very much ma'am please the court my name is julie had kleck i represent the appellee city of portland and the individually name city police officers in this matter your honour's well there's been much talk about a call one section eight qualified or yes your honor but in this case there's several oregon supreme court opinions addressing the issue that appellant raise is with regard to gatewood since gatewood we've had huffman we've had ploughmen and all of them have addressed appellants contention that intent alone is enough to convert an action into protected conduct under article one section eight in both huffman implementing the oregon supreme court said that a person's regional reason for engaging in punishable conduct does not transform that conduct into protected speech and he also said that speech accompanying that conduct is not enough to do that and i want to stress here that appellant makes much of the fact that mr told officers that he was protesting but mr meagerly repeatedly refused to tell them why he was needed what he was protesting and that's important and it's not just texas v johnson it's also imported to a certain extent into article one section eight the notion that it has to be in some way decipherable what you're trying to communicate that the actual nudity or whatever the punishable act is can't just a company speech it has to be in itself speech orgon and you're referring to the city's indecent exposure or not while he was arrested so the police must have had probable cause must have thought they had probable cause to arrest him for violation of some law what  violated the indecent exposure ordinance the city of portland had but i will say that while a good question to consider it's not the question before the court today and one of the problems with opponents arguments is that he bases them on a whole litany of both supreme court and now well that's what would stick with me for second the oregon cases as i read them suggest that somebody might have a first amendment right to engage in a new is it against the law in the city of portland in the state of oregon to engage in a nude protest on the street article one section eight so yes and no because it is highly cont specific it would really depend on what the message of the nudity was with the gate would well but perhaps not holding it says that as applied to some expressive conduct the indecent exposure statute would not be constitutional under article one section eight yes under article one section eight correct it says disrobing in public to protest the exploitation of females that was the example provide females and he his contract would have been protected i still think there's an element of texas b johnson now you're talking with that's that's federal constitutional on talking about oregon constitutional law but if you look at pull out which was a case that appellant just mentioned pelasgians about an ordinance prohibiting the honking of horns for any reason except for the warning of other drivers first amendment or oregon constitution this is an organ constitutional case and it's an older case  in that case they do parse the reasons why drivers honk warrants because it's for a completely different purpose in this case is examining whether that statute whether that ordinance was racially constitutional but it's looking at it and saying well in this in this particular situation you had drivers that were passing it large anti war rally and were honking their horns but to support anti war protesters in pro war protestors so they make an observation that that was the equivalent of a driver leaning out the window and saying hey i agree with you and that brings into brings to bear a sense of like observing the context of serving what people would have seen and what does that mean whereas a simple horn honk without any context even if you subjectively feel like it means something it doesn't get that far and gatewood actually has language to that effect if you look do we have so we have a gender specific first amendment protest if a woman had done this people would understand it was done to protest the exploitation of women but if a man does it he can't do it i mean that again i would say we have we're going back to qualified immunity i don't think an officer could make that c m s is why i'm having some difficulty with your it does with you or it clearly violates or a good law argument a more sympathetic to the notion that i can't figure out precisely what oregon law is and therefore a police officer or not but the notion that it's clear that what he was doing violated oregon law strikes me as difficult given he so i want to correct that i didn't say it was clear i said it is the city's position they have cause to believe that he was violating or going for sure because that is what appears to be done other than merely being nude well first they come upon him he is merely to forget about whether or not they can perceive that a protest is being engaged in or not he's standing in front of the federal courthouse mute may they arrest him or two for violation of the indecent exposure statute in oregon the indecent exposure act makes a misdemeanor out of appearing with their genitals exposed in a public place that's open to people of the opposite gender so there is a gender component of that and looking at the text of that so or would reasonably see and there's no dispute here that mr magoo i was new to me even though the oregon supreme court has said and the oregon court of appeals has said the statute cannot be constitutionally applied to those who are engaged in some form protest again it didn't say in gaijin some forty spoke speech it the conduct itself has to be speech so again if i was new and making a commentary about something completely different and using my nudity for example to draw attention because people look at a nude person that nudity isn't protected as it's not integral to my speech and that's a distinction is that was he saying something with his nudity because one of the things officer said and you can see it in the video which i urge you to watch if you haven't all presumably you have to watch it again it you'll see officer saying you know you can tell this so in some cases sending a video is not a good idea but you know you'll see them saying you put on some pants you can continue to do what you're doing and so the question is what about his nudity was essential to what he was trying to say and he said maybe he doesn't speak well i mean the problem is it's apparent to me he's not trying to engage in public indecency he's trying to protest something he's making making unintelligible science and he's playing the violin and he's putting his clothes in it's it's a it's a very difficult message to perceive but this court is trying to emanate some messages and trying to say something will go wildly while the ordinance uses the word indecent what it actually address is nudity in a public place with and it this is disgusting gate what it's not about what whether it's a lewd and tat's and i in no way is the city suggesting that that was that it was lewd in any way but that's what and i can read to you from that that's what the ordinance you know we have said and we have the ordinance on it but if this is the question it seems to me we're down to it seems to me that one can in oregon be nude and protest as long as it's symbolic or munich would you agree with that reasonable police officer know this is a symbolic or communicative act and that's the problem and one of the issues is would the bully reasonable police officer know that of i would suggest that on the organ yes he would know that if it was if that conduct was expressive however defined that that was allowed and that's precisely why in our case the officer did call and did make an inquiry of the city attorney why they hesitated why they took time to really assess the situation before they acted and they asked mr make the guy why they did it boils down to is there enough like yeah and that's i think my question and i think it's easy for us having watched the video countless times and having you know really read depositions what officers on the ground would have seen and would have concluded i would say would be considerably less from what we're drawing having their views and that's why i get back to the question i was asking before what if when they approached this gentleman he had said i'm cook just see if you can answer my question let's assume that he made it clear that even though no one could tell by looking at him what he was testing that the message in the intended to give out was a worthy one of some sort and communicative message of some sort and he said that to the police would they then have probable cause to arrest him for violation of the code yes it's not the worthiness of the message it's whether the message is embodied in the nudity so bad well through their nudity are punished but those are communicate well  you that's the notion of an objective observer but if you're looking at a reasonable person and question but the question really goes to as i understand it and i went past portland because i don't think that really tells me based on what they did in portland and based on the court that said that i was looking for something in the supreme court just said it and and that's where i got to symbolic or communicate act seems to suggesting there's one further know that not only must it be communicated back but it must be the nudity must have some relation to the speech that what you're telling me yes so texas b johnson says there needs to be an intent to convey a particular message we have the conduct that would otherwise be a problem as you keep you keep you when under the first amendment i think you are worried here about where you are worried about the for the oregon case the for so when i don't think there's any i think least on the qualified immunity side of it maybe i'll be dissuaded by my colleagues i don't find a case that would have given the police officers clear notice that there was a first amendment violation by arresting him what we're parsing here is the intricacies of oregon law the oregon supreme court says well you know under our constitution maybe you have a right to stand naked in the public square and if you're communicating something and so we're trying to figure out whether a reasonable police officer on the street would have known that mr within his or a good article one section eight writes when he was doing this so switching back and forth to the federal cases doesn't help me i really want to know what oregon law is on this topic and i think the fact that you're not organ practitioners is not the reason why it's not clear i think it's not clear because oregon jurisprudence on article one section eight has been very fact specific and it hasn't right reached a set of facts similar to the facts that we see before us today so it's very hard for us as practicing lawyers and judges to reach any kind of decision on what article one section eight means in this context to expect that officers on the street who called attorneys and gotten advice could reach a better conclusion than we can today i think i think that speaks and speaks to the purpose of qualified immunity giving breathing room for officers to make reasonable but mistaken judgments and heaven knows officers really did try to get m to comply they tried to understand why he was doing what he was doing they spoke with him they gave him time to comply to put on a pair of pants and continue his protests this wasn't this wasn't a split second decision this this was a considered one but because the contours of article one section eight are so unclear it was not an easy decision to make and for that reason alone there's qualified immunity but even then there's a layer of probable cause further muddying the waters and all of the cases that  appellant cites are cases of criminal appeals there's no layer of with one exception and in that exception the office of the officer that often qualified immunity and that was galvin but all of the others were appeals of criminal convictions for an answer as or statutes that were then i think she's used all your time appreciate i'm being nice to their i appreciate that just really quickly on the point that panel was asking about how would the officers with officers have known that mr meagerly was intending his nudity as a symbolic communicative act it's not the case that mr mcguire was not at all responsive to the officers in fact when the officers arrived he told them i am protesting and they said you're violating the law and he said no i'm not my son my nudity is protected he pulled out his i pad and showed them there's no question of that here and mr meekly even though he didn't necessarily tell them exactly what he was protesting he told them he told them this is for protective protest here's case law here's article one section eight me ask a different question and maybe it's not this statute is it really your position that if you are intending to communicate something you may stand naked in the public square in portland even as children walk by because you intend to communicate some message so that you may be overbroad if it if it becomes all nudity but here we have somebody standing on a busy street where young children are walking by and and people who may be you know lots of lots of folks are walking by so my question is is it really true that you may say and if he stands there for hours as i understand the record right he did stand there for hours yes is it really true that that's that that that the there is no oregon law that allows the police to stop somebody from that sort of extended extended amount of nudity in the middle of the day in the public square so two things first and councils council so that argument is that subjective intent is enough here we have not me no no i'm not i'm just i'm really asking is is it really your position that that is a long as you intend to communicate something you can stand naked on the public square for hours as long as you're nudity is falls within the ambit of gatewood which is protected symbolic or communicate back there again court has said and in lincoln were clear to him to be objective observer or that he had a subjective intent one where the other i don't care what it is as long as he's as long as there's a message being transmitted in oregon you breaking the law by standing naked in the public square for extended periods of time our contention is not that you break no law our contention is that you don't violate the portland city ordinance that he was arrested for there are other laws that may apply there may be time place and manner restrictions that can apply but that's not what's at issue here what's at issue here is simply the portland anti nudity or guys thank you thank you thank you for oh well no i was going to say you did this on a pro bono basis right we thank you very much for that one for that it's it's a high honor for us to have lawyers who will take these cases on a pro bono basis and we appreciate it thank you very much