good morning your honors i'd like to reserve three minutes for a bottle that's ok yes and i'll try to help you with that but ultimately you'll be responsible i understand thank here on a good morning my name is jared richards and i am the attorney for appellate stephen stops where the confines of her birth there are the rights of fifth amendment miranda began and as a necessary and ultimately intertwined aspect of the fifth amendment right counsel is the fourth amendment right in counsel to be free of search and seizure without probable cause without the right of the counsel to be secure in his person without threat of arrest without probable cause the we cannot have an effective right to counsel now in addition it is clearly established that under due process of law a person has the right to not be maliciously prosecuted where in the officer makes intentionally faults misrepresentations that imply have a right to counsel or do they have a right for counsel to be right next to them wearing a gun while police are tempting to issue a citation or you know to the the person or to the client i guess perhaps under if this were an ordinary burqa or stop that would be a question i'm sorry it perhaps if this were an ordinary routine burka murder traffic stop that was contemplated berka murder that would be the question that would have to go down but the issue here is that this was not a routine st parking lot area i thought your client was inside the establishment yes somebody called him out i don't think it was the police officers but not me that's what wrecked it so as the ways it went your honor is that the officers mistress marius had gotten off his motorcycle and was heading into if he was heading towards the building where he was going to attend a seminar where my client was giving a second amendment seminar the officers detained him and somebody from a friend been submitted to the the court showing that the officers approach mr stubbs and mr stubbs approaches the officers under mr stubbs deposition and quite frankly we can hear it in the actual video itself mr stubbs and i don't believe th citation you can say wait a minute i want to get my lawyer well if this so if this were a normal traffic stop i would normally say yes but in about normal i'm saying there is no right to counsel when you're being given  counsel under any order normally as if this is not so this is an abnormal to do this is an abnormal traffic stop your honor and that's that it comes a point that so regardless of whether he had the right to counsel i guess that we should probably define why why why is this an abnormal traffic stop it abnormal for two reasons one is that the entire traffic stop was part of an intelligence gathering activity by intelligence tax force to give his firearm the officers declined saying it wasn't necessary and then we have for the next however many minutes mr stubbs being present during the interrogation and there is a finding of fact in the last page of the trial transcript where the where the judge ruled that mr stubbs was a perfect gentleman that the two officers at initially were a perfect gentleman that there was no issue in tells her to you tell me arrived and now if at that up exactly and at that point in a matter what this traffic stop was before at the second that this special unit arrives in three unmarked s u v s with multiple police officers dressed in tactical gear with intelligence task force with at least one officer carrying a ar fifteen swarming the scene surrounding just marius and mr stubbs at that point whatever this was before had significantly and utterly changed that where we have this you notice the u s supreme court and saying that the reason why you don't need counsel at a normal traffic stop is because it's not intimidating this is into a normal custodial detention where people feel more intimidated because of the oppressive environment that had changed once we have people with semi automatic weapons in tactical gear surrounding the detainee and mr stubbs from that point on from that second on this was no longer a normal and standard officer you told me in her malicious prosecution case so with us you tell me repeatedly and this is important because we see it repeatedly throughout testimony we see it in the criminal trial we see i throughout peppered throughout the answering prefer that she says three feet three feet three feet that all i wanted to do was ask him to move three feet because i was concerned about the location his gun in proximity to dismiss that she wasn't worried about mr stubbs himself having the weapon but just he was they were worried about just mary's having access to the weapon but the problem is that that is a not only disputed fact and thus inappropriate summary judgment it's a provably false statement because we can see in the video when she says i need you to move over there we see her finger point not perpendicular to the ground not down towards the ground but up north of perpendicular to the ground meaning that this is not a three feet she's trying to get him to move she's trying to get him to move to the building i think about right under a general allegation but the specific allegation was when she goes to criminal trial was that he refused to move three feet away because all i wanted him to do was move three feet away i know that what the purpose of three four three words was worried for the op that the motorcyclists would be have access would be able to reach mr stubbs weapon but mr subsidy offered to disarm and mr stubbs is more than have to move three feet away it was that ten to fifteen to thirty feet away that he was not willing to fell though they may not be free to leave they don't feel pressured to give statements they don't feel pressured to wear it once and the court is very clear in her career that that's one of the elements of a normal traffic stop but once that changes and yes and that would isn't that the record it's not normal i mean well it's almost like harassing but what you have is you have a group of motorcycle clubs congregating so the special unit is on scene for officer presence to try to defuse the officer the original office of the sighting officer was proceeding rather relatively smoothly and citing the you know the individual mister stubbs was there but everything was cal the sudden this unit arrives and instead of facilitating you know it seems like are keeping things calm it seems like that whether they were within their rights under the law that the op serves were or were appropriate in that regard or something but it seems like it just interjected drama unnecessarily and i mean you must have seen the video oh absolutely and so what happens is you have sergeant williams and you have del rosario who are patrol it is but you also have this group of bikers now congregating forty to fifty bikers are now in circling the officers so lieutenant you tell me who is the experienced person in this field arrives on scene with her unit two and she most familiar with these situations is that you have an armed bystander within inches of the traffic stopped individual and she just simply wants to move that person away but as mr stubbs that escalates the situation when he interrupts the conversation between sergeant williams and lieutenant you tell me he's not invited into that conversation he's not asked to be there he comes in and says he has a fit the memory to counsel and that's what initiated this process and then went to lieutenant you told me does is you just need to stand over there and the smelliest said it was five feet and lieutenant tony said it was five feet and are three to five feet so it's just the the issue is whether there was probable cause ok and whether th it seems like your position is there was probable cause for the officers to do what they did correct in the on the and arrest him for obstructing mr rest mr stubbs correct but many of the questions wrapped in the problem caused the terminations here fact based i mean this is this is the kind of questions that we should leave to fact finder absolutely not the questions here th facts are essentially undisputed that stubbs virtually initiated contact with lieutenant you told me when he said interrupt the conversation and that the issue is whether it is reasonable for an officer to ask someone who is armed and even if they weren't armed to just move out of the grab area of the detained person so also give me the specific list of facts that you think establish that officer you told me had probable cause for arrest absolutely the verbal initiation of contact by mr stubbs despite being armed he insisted on standing inches away that he rejected numerous warnings to move away that he verbal e stated that he would not comply and that even after he was given a final warning or lieutenant you told me said you are not i'm paraphrasing here but you were not going to comply correct he said that he would not comply because there was a fifth of my right to counsel so what lieutenant you told me officer said no you don't have to move when in fact you said i'll give you my gun well well there's that's all right keep it ok well there's multiple ways to handle these situations absolutely you're looking at whether lieutenant you told me as actions fall within a zone of reasonableness there's probably a thousand ways this could have been handled and under scott behind rather the thousand ways if you don't do it her way why is that obstructing her way has to be reasonable has to be objectively reasonable and then if you don't follow an objective lee reasonable order you're obstructing and she gave multiple opportunities and she didn't arrest until she realized mr stubbs was not going to move or leave so what did she do she said i'm going to move just marius five feet over here to this car and what does mr stubbs say i'm going with him he does not have the right to control the traffic stop he does not have the right to dictate that she was making reasonable accommodations to to solve this problem because even after he was handcuffed she says i'm going to give you one more chance by the way everybody on the scene in the record but i would say under the law he didn't have a right to counsel or you never expressed that in your very you know we did in a footnote and we certainly express it in the summary judgment pleadings because that claim belongs to the smear is we're not interested really is that whether there was a right to counsel i don't think it matters whether stubbs was an attorney or a bystander they have the right to to object usually reasonably move him five to ten feet away because he's armed and any reasonable officer would know because if you single question you told me never said a word to dismiss if he was being interrogated absolutely your honor but he was there was no intent to interrogate him even after studds was in the police car and out of any way he could  involve themselves they still have arrest this mary is a single question that is a subjective belief that mr stubbs has that that was what they were intending to do there is no object of evidence to that and so i think that's him if port here that throughout discovery they didn't create any issue of fact that they wanted to interrogate to smear is all lieutenant you told me was concerned about was the congregating biker's the fact that there was an armed individual within inches of entertained person and just wanted to move h and i think that where you get to the obstructing is the multiple opportunities there were four opportunities she gave him and at the very end she said i want to give you one more chance if are you i mean will you will you stand over there he said no fifth amendment right to in order to ensure the prosecution of mr stubbs would the lieutenant be entitled to qualified immunity it's a two part answer the first answer is if there is probable cause prosecution claim under lassiter if there was not probable cause then there would have to be evidence in the record that she lied or concealed evidence here they didn't even attach both of her reports to the brief we did because both reports are internally consistent with each other and they're consistent with the audio and they're consistent with the video there's no false statements there's no misrepresentations in those statements second of all the penny you told me testified i gave everything to the district attorney now whether the district attorney turned that over in the criminal case is not her responsibility they never obtain any evidence or deposed the district attorney to find out what did you receive or what not but the testimony was i gave them everything i don't know what they did with it so even if there wasn't probable cause it would fail because she didn't take any steps to ensure the the prosecution of this case that answer your question your honor thank you and other questions your honor no thank you argument the entire probable cause their entire statement she didn't make misrepresentations are all based on her own subjective and quite frankly wrong interpretation of facts that are disputed and thus the question that you a claim for malicious prosecution you have to show that defendants prosecuted mr stubbs with malice and without probable cause yes and that they did so for the purpose of denying a constitutional right that is correct  what specific constitutional rights are you relying on here the rights to due process as in compass is the right to not be maliciously prosecuted but are you talking about testimony and at the criminal trial was i needed him to move three feet away so that his merits would not have access to his weapon but as belied by the fact that one of the if you look at s e r one thirty three the transcript of what was actually said one of the out of mr stubbs mouth to her was take my weapon that when she says i only wanted him to move three feet and she repeatedly said three feet three feet three feet the report that was kept out was her contemporaneous statement of it was ten to fifteen feet which would be out of earshot and fact when we look at the video she is pointing towards the building that's about thirty forty feet away the statement that she makes that there were a bunch of fun really bikers surrounding is not at all true and is an issue of disputed fact those there were people that were standing next to a building but they were not rowdy there's a video the only voice you can hear on the video is the occasional commentary of the videographer at the very end when he does make not an angry but loud a louder statements clearly to the officer saying i hope you enjoy persecuting christians i hope you feel good about this but that was after the arrest was complete there was no unruh that there might have ben people there but there was no unruly crowd and they certainly weren't surrounding these statements by officer you tell me that are justifying what she did and specifically that all i wanted him to do was move three feet away is abjectly and provably false and that was the entire basis of the prosecution that they want to say your orders he was