next case is david souter city of stafford texas the morning your honour's made please the court none of the defendants in this case are entitled to summary judgment and i'll start first with the claims against the defendant officers in their individual capacity and as to the officers the in this case qualified immunity turns on whether there was probable cause to believe there was probable cause for the events of the obstruction of the passageway under texas law now this court has as recognized in mandiri versus clifton in one thousand nine hundred four and many other cases that an officer can be mistaken about probable cause but that mistake has to be reasonable and if the mistake is not reasonable then there is no qualified immunity and in this case no reasonable officer could have believed that probable cause existed for the offense of obstruction of a passageway as it's defined under texas law and so the question is what was clearly established established in the law at the time arrest well we have to go back decades and before we get to the obstruction standard to look at what the supreme court said about the first amendment rights that are at play in this and circumstance  elections commission the supreme court said it's fundamental that you have a first amendment right to engage in close personal conversation and in and to and to distribute literature and shank vs pro choice network  hundred seven the supreme court said specifically in this context of pro life advocates outside of an abortion facility so that they have a right to engage and close in close personal conversations and distribute literature to people who are approaching planned parenthood shows it is that i grant it shows i see chose that shows it ok shows it is saying he is keeping people from you know he's harassing people trying to come into the clinic so why can't they rely on that at least for the probable cause even if mistaken we may conclude very much that there wasn't probably cause here and that's fine but the qualified immunity question is you could be mistaken as long as it's not unreasonable your belief what makes it unreasonable per them to rely on shows and saying you know have any legal effect the question they are claiming qualified immunity for the offense of obstruction of a passageway which is defined very specifically in texas law thirty two years ago the texas court of criminal appeal said obstruction of the passageway requires that passage be completely or severely blocked and try as they might throughout this litigation the defendants have tried to avoid discussing that standard and that and i believe the effect of that was the district court sort of alighted as well so you're saying they needed to ask shows it has he completely or severely blocked the entrance and if she had said yes even if she was lying then they would have been reasonable relying on her but having failed to ask her that were or get that information from her they had nothing to rely on is that the argument well i would say to you it goes further than that i mean given the fact that you have a complaint lodged against a political opponent of my client in this case like you do in the s b a case versus driehaus which we discussed later in the brief on the first  chill claim i would argue it would have been reasonable that even if chosen had said something like that a reasonable officer seeing davidson standing there not obstructing traffic at the time that they approached him holding a sign waving to cars he even tells the officers when they ask him are you approaching and talking to people he says yes in fact you know i'm handing out these cards to people discussing pregnancy services that we have case law that's clear that the officer can rely on one witness over another on the scene undisputed facts only have chosen it said he's blocking access they could have believed her but she didn't say that did she she did not say ok and she and in fact if you will in this is a critical point i am not even disputing the facts that the any material facts  defendants have put into the record their affidavits that came after their depositions affirmatively negate probable cause for obstruction shows the flag reports that chosen told me when i arrived that davidson was approaching people that he was talking to people discussing was beliefs or that he was following people to the doorway we've disputed that he has done that but still nonetheless he could rely on that she told him he was following people in approaching people one cannot obstructs under sermon and hay and long standing texas law if you're following somebody because you can't you have to at least be in front of them and in hey versus state the court of criminal appeals even said even when you deliberately slow your pace in front of a car trying to enter through a driveway this was a labor picketer case and he ignored a direct order from a police officer on the scene and slowed himself as a car tried to approach in the court called that momentary hesitation and said even though it was deliberate that is not enough for obstruction in light of the first amendment rights to communicate a message and if we look at the snyder vs say to new jersey case  thousand thirty nine the supreme court specifically held that individuals have a right to impart information including the distribution of literature to people upon the sidewalks and including on street cars on the street and and that w that line of cases is what inform the sermon court the texas court when they narrowly construed the obstruction statute and that narrow construction was even already recognized by the fifth circuit in howard go company in one thousand eight are you saying these officers were on notice that this stand chute is restricted to complete or near complete obstruction of the passageway and that when first amendment rights are involved the fact that somebody passing out literature doesn't involve obstruction or doesn't imply obstruction and therefore they could not have had a reasonable belief that their problem cos it had to be unreasonable or at least that there's a fact question about the  reasons for something i don't know exactly your honor and that there's no fact in the record that even establishes that one now has its objective so you're saying as a matter of law they could not have had such a reasonable believe we did not follow a motion for summary judgment yet so at this point i'm saying the facts in the record preclude summary judgment for the defendants on qualified immunity but it's exactly right there is no fact in the record and i believe this extensively quoted the deposition testimony quoted the best parts of their their record in all the facts of the davidson was following people approaching people there is no fact that shows he was even ever momentarily in front of a vehicle or person let me ask you this in the area of excessive force and other areas of qualified immunity the supreme court has often said you need to have basically not just broad generalities but a case if not exactly on point clearly on point that puts people on notice so it has it's not clear to me whether that line of authority has been applied in this context but if we assume the supreme court interprets call fight immunity the same way on regardless of what the constitutional claim is what case would put these officers on notice that their conduct was violating the constitution the best facts on the record that the officers can rely on or chose it's claims that davidson was delaying in inconveniencing patrons entering the line or exiting the line qualified immunity is precluded based on those facts based on the sherman case because in sherman you had exactly the situation you had a driveway or of the picketer deliberately walked in front of the vehicle and slowed his movement and the court said if you have nothing more than a momentary people and and delaying the movement well in light of these rights that the supreme court has recognized long ago and shank in this specific context and snyder the right to hand out literature including to street cars and in light of sherman the officer had no probable cause unless he at least tries to ascertain whether davidson had ever been at least been in front of somebody and obstructed their movement there's no fact that any patron was required to deviate from their path at all and that distinguishes the situation from any of the other cases that the defendants have tried to cite let me ask you about your claim for prospect of relief what specifically would you want the court to order or do or say that would be that  you don't want just some vague thing follow are something i mean what specifically could do coup or order that would give your client relief in terms of want to go back in and stand around at the plant parent or i would point to that is the on record page for all three which is the defendant's reply in support of the motion for summary judgment of the city defendants say that they don't just say that a reasonable officer could have believed probable cause existed here they go a step further and they say that on these facts probable cause did exist for obstruction of the passageway and they say because davidson was quote approaching persons entering and exiting and delaying them and doing so and this could amount to unreasonably inconvenience under the statute that is not the standard they only get to that point by ignoring the governing standard from thirty to go if you were to prevail on your prospect of relate how what would the order look like that would give them specific directions that would be helpful to your client but not you can't have  begun junctions and so what would what would the order say it would be a declaratory judgment if you don't even necessarily declaratory judgments can be considered separately from an injunction it can be a declaratory judgment that in fact staffer you must follow the standard that's been in texas law for thirty two years approaching vehicles talking to people is not obstruction under the statute because to find that probable cause exists on those facts think about the situation mr davidson is it now and he's been there for two and a half years with no assurance that he won't be prosecuted if you engage in materially the same activity again at this location on these facts stafford by saying throughout this entire case that probable cause actually existed he's at pain of arrest if he goes back and planned parenthood calls and says the exact same thing they did that he's delaying in inconveniencing our our patrons under the facts of this case that officer would have no duty to do anything but accept that the rhetoric is appropriate here because stuff is positioned literally reads out the narrowing construction has allowed the statute to stand the statute was specifically narrowed by the court of criminal appeals to protect the very rights that were  adjudication from the district court reads that standard out you're saying essentially their reading of it if that's how the statute really was interpreted worded would almost be facially invalid and exact that's why you haven't as applied because the statute is worded is fine but only with the narrowing that it doesn't mean that any time anybody is even slightly delayed you know because anybody who's standing anywhere passing out brochures you know do you want to a discount on you know ten percent discount at this store or that store they're standing in a mall you know you're walking by you can keep walking or you can stop for a moment what are they hand an out and so you're momentarily as you said delayed but i would necessarily call that obstruction and what you're saying is that texas courts have recognized that made that clear and stafford has now taken that essentially were under this decision if it stands were in the position before sherman was decided in which the statute would be facial unconstitutional and that's why i and steph are can't can't on the one hand claim that probable cause existed here but then claim that we can they can't challenge the statute as applied because it's already been a while he addressed the city's liability yes your honor thank you d the district court did not even address the first argument that we had as to this issue which is that it first of all it's established and undisputed that chief chronos a policy maker for the city and he yes i endorse this understanding of the failure to id statute which says that a person can be arrested for failing to id even before another predicate arrest has happened which is facially contrary to the statute in district court found that that is beat by his testimony he's established the city's policy and that's reflected because those other incident reports that have been in the record show that seven other officers have applied that statute in the exact same manner and that's there were seven incidents where that happened against particular defendants out of nine times when the statute was it was cited in the offense record and i would have lastly even if on section forty two zero four when the officers arrived it's undisputed that davidson was not obstructing anybody officer jones in his affidavit admitted that he didn't see anything illegal and so even if chosen had told the officers you know what davidson was was chained him self to a barrel and was sitting in the in the driveway and people from moving when the officers arrived he had apparently abated any order that had been given to him to remedy the violation and so undermanned jiri from this court in one thousand nine hundred four even if he had done much more than he did and engage in obstruction there's no probable cause at the court made a comment earlier that person wanted to address that the officers here were relying on disputed arguments based on defendant's read of the briefs we don't believe that there's a dispute as to the facts known by officer flag at the time of the arrest  in the context of the qualified immunity defense the court is supposed to look at the totality of the facts and circumstances known by officer flag at the time of the arrest there's no dispute between davidson and defendants as to what those facts were now the dispute would be between what chosen said he was doing and what he said he was doing i think the dispute is more as to what the actions were that that davidson took while he was in the parking lot and on  that the officers didn't see anything they can only rely on what they're told and my point which actually helps you is that they can rely on shows that saying well he was throwing himself in front of the sidewalk and no one could move and he could say no i wasn't they could believe her and arrest him that's correct that was my point but you're saying they don't even really disagree about what he's doing and what he was doing is not a violation of forty two of three is narrowed by the  it what i'm saying is that there is no dispute here as to the facts and by officer flag and although the facts made the video the facts as shown in the video and the facts known the officer flag at the time of the arrest may be slightly different there may be slightly a variation there in that the video shows that he was approaching customers in their vehicles and then the facts known to officer flag at the time of the arrest were based on chosen statements that he was actually approaching customers in the parking lot and on the sidewalk there's no dispute what he knows is that david says approaching customers as they're coming to the clinic patients who are ok why is that a violation of forty two or three what was it that shows it said that would give flag probable cause to believe that in fact i'm out probably going to call i mean a minute was there actual probable cause if there was we're done was there actual probable cause what is it that he was doing that would planned parenthood had reported that he was flagging down customers before they entered into the facility arrived at the facility and observed that davidson was on the generally on the green space what shows it specifically told officer flag was that davidson was approaching customers on the sidewalk and in the parking lot and was following the customers on the sidewalk to the entryway in front of the business shows it also told officer black that davidson was harassing customers she also of course warned him that he needed to  leave david to counsel suggest that there has to be and a specific requirement that davidson be in front of the customers or that he in some way cause them to deviate from their path although hey and i think to a certain extent morse and there may have been a deviation in the course of the pedestrian to go around the obstruction there's no particular language in those cases that say that there must be some kind of physical deviation by the person who's being obstructed but how is it constitutional if he's not allowed to stand there he's not obstructing anybody how can you costed usually forbid him from standing there and as people walk up saying hey i have a brochure or whatever which they're free to ignore and keep walking or they can stop and listen to it defend its argued that he was actually a cop he did actually constitute an obstruction in the case that like to point to is the hey case it's a court of the criminal appeals case from the eighty's and essentially is the gold standard because it actually involved and upholding of a conviction the texas penal code forty two point zero three and that case what you had is a pedestrian who are a person and i'm assuming it's a protester although the case isn't clearly say whether or not it was a protester standing in obstructing a regular size sidewalk all in the middle in the middle of the side was there any did anybody say he would that davidson was standing in the middle of the sidewalk chose a bridgeport at that he was standing on the sidewalk following customers on the sidewalk to to them and i stop and have to take a can of you that's a that's deterring them from what they were doing and that's obstruct that's correct i believe you have to clear misunderstanding of the law all that's needed to prove an obstruction is an the least now i may out of politeness feel like i need to look at the person or something like that that's not an obstruction your argument is it is and this is fairly fundamental because this goes to his question or prospected really it sounds like if you're agreeing the just trying to hand somebody a brochure on a sidewalk is obstruction then it does sound like he needs a perspective really because you're their lawyer and you're telling them that that's the law and that's not the law and if that is the law then that law is unconstitutional as appl take a look at the case law it was not a complete blockage there was not a complete restriction on there was not a complete obstruction the court must have found under that statute that there was an unreasonable  inconvenience to the pedestrian in ok but there's a very big difference between i'm walking up to a sidewalk and somebody is standing in the middle and i've got to try to walk around and he's kind of dance in there with me is i'm trying to walk around him versus somebody standing on the side of the sidewalk i'm walking along and he's shouting you know let me pray for you or whatever and i'll just walk and walk and walking and that that second is what happened here isn't it there's no evidence he stood in the middle the evidence is he stood on the side of the sidewalk at most didn't see what we get from jurors that is that he was harassing customers that he was following them that he was delaying them from entering where is the delay delay is delay is that they stopped did they have the option of walking by him could they have marched down the sidewalk and he's shouting you know i want to pray with you or abortion is evil or whatever he's shouting ok could they have just kept walking was there anything that required them to stop other than perhaps politeness or curiosity or all the things that make people stop and somebody has got brochures the only thing that's in the record of the facts that are in the record are that says it informed officer flag that david affidavit and i think for you to know when she told flag what was going on what facts because i mean conclusion of harassment i might feel harassed when people are trying to hand me brochures as i walk into the mall that doesn't make them harass me ok so what facts and the facts are very important here because where he was standing and what he was doing is the whole case so what facts to chose a give flag that would suggest that people were being unreasonably inconvenienced and walking in i'm going to have to directly back to two officer flags affidavit that he was told by chosen that davidson was approaching customers on the sidewalk and in the parking lot following them to the entryway of the clinic so there was not a momentary hesitation there was more there there was more of a delay there than say about there being follow that means or walking how my being obstructed of someone's following me it may be annoying it may be upsetting it may make me feel bad but how is that obstructing me from walking into a building if somebody is following me the statute does not rule out the fact that the customers here who were delayed that that was an unreasonable inconvenience in fact the hay case supports and how am i delayed if someone's following me into a building you're too late if you are you are if you are movement is restricted in approaching the sidewalk or the entryway and you think somebody who's movement is delayed that they were not able to move you know to word down that there is nothing that shows that he was keeping them from moving other then people might have somebody shouting at me i might stop are meant to go why are they shouting what are they saying and maybe i'm i'm interested in hearing what they have to say maybe i'm repulsed by what they're saying and i keep on going if you look at officer lives affidavit and i'm not saying that it says the specific words that you want to hear it's obvious and i know that you want to hear those words but the i don't want to hear them i'm looking at the question in the case is whether they were unreasonable in determining they had probable cause to arrest him for actually a charge and even arrest him for but a charge we've now you have come up with to justify this and it doesn't seem like it does so that's why i'm not looking for any anything specific except what the evidence shows just to finish my point if you look at the actual affidavit language it's broadened appear to include more in the path of the customer to the entryway if you take a look at that language so it wouldn't this apply in any abortion clinic protest somebody might feel harassed if they're walking in to get an abortion and somebody is shouting things like this is evil or god will and i'm not saying he was saying this but people say those kinds of things which have a first amendment right to say just as the people who disagree of a person member right to say what they believe to be clear but so he's saying something that's offensive let's say to somebody who is walking into a clinic for abortion counseling all right in your view is that obstruction is he standing there not physically impeding anything and he's just saying you are committing a bad act or god i'm praying for you or whatever he's saying those kinds of things is that harassment to the extent under looking at the particular statutory language all that is necessary is an unreasonable entering into the clinic ok so you would find that that that conduct would be proscribed by the statute so then how can you disagree with his request for prospective relieve because he has that right i mean again this is a difficult area ok i completely get that you have you have two people that strongly disagree the planned parenthood people strongly disagree with mr davidson on an important issue no question but that's what the first amendment's kind of all about so he has the right to disagree with planned parenthood they have the right to conduct their clinic and so you're saying his mere expression of his disagreement with what he perceives as something bad is a nuff to shut him down and put him in jail how can you square that with the first amendment and the recent u s supreme court decisions and that it's not just his his disagreement that what what is important here is his actions and those actions again are set forth in  probable cause existed here to arrest davidson and to the obstruction statute that no reasonable police officer could have could have believed that probable cause existed here so what that even means is that if reasonable police officers disagree if you have ten police of reasonable police officers and nine of them do not agree with davidson that a reasonable police officer could have believe that probable cause existed but you have one that did agree with david i'm sorry with officer flag then in that situation qualified immunity protects officer flag so that's why i'm asking about the prospective really it seems to me even if you want to call that a meeting because it was not objectively unreasonable because the law was unclear he was unclear the whole city of stafford unclear then don't we need to clarify this i don't know that the court needs to make any kind of broad statement of law here today i think the khaybar of last and smith case law is sufficient for the court to uphold the summary judgment and the well reasoned summary judgment of judge hitler that and i'll direct you to a page in his order what judge had found was that davidson had not met his burden to rebut officer flex qualified immunity defense because the evidence shows officer least arguably had probable cause because he reasoned reasonably believed davidson made passage through the parking lot and into planned parenthood and reasonably inconvenient by harassing planned parenthood's customers and stopping vehicles as they enter the parking lot and that's another thing i wanted to get to the court called up the video in this case and i'm assuming that the court has looked at it if you take a look at the video there are key points that i want to bring out davidson was in the entry an exit way to the parking lot for approximately twenty of twenty one and a half minutes so he was standing somewhere in the entrance and the exit at that parking lot davidson approached three customers in their vehicles gave them coupons and talked to them these interactions were sure as thirteen seconds and as long as sixty five seconds somewhere out it take the interaction with the first car somewhere between the time that the car was leaving and some were a bit between the point where the conversation between davidson it did and the time that the car was leaving somewhere after that for about twenty five seconds before that carl l david said was standing somewhere in the remaining space in the entrance and exit of the parking lot for some of the seconds he was completely blocking the entry way into the parking lot so if you take a look at that twenty five second period when you've got a car in one lane davidson is in the other space completely blocking the entrance to the into the parking lot he actually block a car it's not clear from the video but again we're the inquiry here is whether a you know i can't tell by  i can't tell if the vehicle slowed or if they put on their blinker earth attempted to it doesn't look like there was an attempt made but we really can't we'll never know that we could never know that because what we're getting is just a video from a particular view or a particular angle  ask you this because this is just this this hypothetical keeps coming to mind which is at all the polling places to stand a hundred feet out but if you stand a hundred feet out candidates and their supporters and so forth can stand there handing out brochures shouting at voters and saying vote for salsa song so vote against also so and so and that is very very common ok what about your rule would limit a sheriff who doesn't like his opponent doing that from has sending out the deputies to go arrest the opponent who's standing there handing out vote for me or vote against sheriff x brochures again assuming the hundred feet and all that and assuming you're not blocking the sidewalk but you're just standing there as people are walking up to vote and trying to get them to vote against sheriff x or for candidate y what's to prevent that arrest that the behavior describing is a little bit different than what we have going on here he isn't here we have david's and the facts known to officer flag with davidson actually followed specific individuals from the car to the clinic that he was harassing them that he was impeding them from entering the clinic and that it was more than a momentary qualified immunity basically protect officers except those who knowingly violate the law or the reasonably or the just plainly incompetent so so hope and immunity here protects officers unless they're plainly a competent or they knowingly violate the law there's no evidence here that officer flag knowingly violated the law particularly when you take the heysen if you think if he had been standing there handing out coupons for the local car wash that any of this would have happened he was doing everything else exactly the same but instead of handing out sonogram coupons or whatever it was and addressing the subject of abortion he was saying i have a car wash down the street this is a dollar off coupon it's a hypothetical that i can and it could have happened but i just don't know you know particularly whether you know that would have been the situation where the police office would have been called but what we do know is  that marilyn chose that who is in charge of the clinic she approached him and asked him to leave and he did not leave so i don't know under what the hypothetical that you've stated whether that person would have stayed on the green space whether that person would have been in the entry or exit to the parking lot and the other thing that i wanted to mention before we get off the subject is that the video shows that davidson was walking back and forth from one curb to the to another about thirty six times so he was for about twenty minutes in this tree exit way walking back and forth pretty consistently when he was not actually approaching vehicles that's what he was doing and also it's in focus is on the fact that the contact in the cases that we've studied most of the cases we've cited w stationary here david said was more of a moving target and that could arguably be more of an obstruction then if he had just stayed in place stationary next to a cur first the references to the these various aspects of what is shown in the video first of all i would point out that the defendant still cannot a deucedly of the ones that davidson was rather than moving rather than was ever a stationary object obstructing anybody for even a moment but i would go beyond that point out none of the officers looked at the video before the arrest and at the qualified immunity stage the question is what facts do the officers know at the time of the arrest and could a reasonable officer believe that they supported probable cause so that so the facts that are that are in the affidavits the facts that came out of the deposition are what are relevant to qualified immunity  not some spin on the video but even if you look at the video it does nothing but affirm that davidson never engaged in anything close to obstruction and i would just point you to record david is record page one forty eight and one forty nine are the relevant portions and there is no statement in here that goes beyond what i've said before and she says i observed plaintiff walking on approaching customers in the parking lot and sidewalk that cetera i informed officer flag the plaintiff had been walking in front of the entrance of planned parenthood in the parking lot and was approaching persons in or a going to exiting the lot and delaying those persons from either entering or exiting again the question is what was occasioning this delay this is a planned parenthood employee claiming that a pro life person outside their facility is delaying and harassing customers it's not a crime even if he had deliberately slowed and caused a hesitation of a vehicle entering under sherman there's not even that much  in the records showing that he did even that so that's what her affidavit actually says and i would point out also to get truth is they weren't trying to arrest him for obstruction so they really didn't a questions they arrested him for a thing and i get by realize that if you can find something else he was doing that would justify the arrest that saves the day for the officers but it is why they didn't ask the right questions in my view when i said that in the brief and if you watch the video one of the pertinent parts of believe is with the dead officer flags and he testified his deposition the only thing i asked davidson was whether he was approaching or talking to customers and in the video you can hear that question and you can hear davi response which is that yes and i'm handing out these cards and he's having a conversation with with the officers and at that point the questioning abruptly changes to his identification and once once they don't get the answer that they want in terms of his last name and address that's when the arrest happens and that whole interaction is probably i don't know thirty seconds or so and this is important in terms of moving force for official showing   as judge haynes just recognized obstruction was nowhere near their calculus at the time of the arrest the video shows that the moving force with the arrest was the failure to identify policy would davidson just said my name is jo and at least four times in the video you can hear the officer say i think it's usually officer jones saying you fail to give your identification to us when we're conducting an investigation you go to jail so that was the moving force for the arrest stablish municipal policy through his testimony but we also have in terms of means will mean a civil liability we also have the pattern of practice and i want to address this point because it's important i think this is an important issue for the court to to look at in terms of even if you think that it's not sufficient you know crunch testimony alone to establish policy as the policymaker if you look at the pattern of practice here the defendants have tried to argue that underpin it in peterson this is not enough and this is a materially different situation in those cases it's not an excessive force case it's not an unreasonable search and seizure case it's a facial misapplication of a criminal statute and