unlawful arrest lack of probable cause we argue in violation of her first amendment or fourth amendment protections against unreasonable seizure pursuant to her exercise of her first amendment rights for free speech and in lieu of her duty to represent her client to his fifth amendment rights the issue here really is whether or not a law enforcement should be entitled to base in a restaurant probable cause when someone exercising their first amendment rights and whether or not retaliation can be the basis for an arrest we argue that it cannot but when i ask you a preliminary question you said she was representing her client i understand that she represented this person in in another proceeding but with respect to this investigation was did was she this was just an initial investigation so she wasn't really his he's the lawyer for purposes of that investigation i suppose well that officers wouldn't know that because ms tell us and made it very clear upon her approach to the officers that she was representing mr jackson and it was at that time if there was any confusion about whether or not she represented him for the purposes of this investigation mr stansbury had the opportunity to inform counsel that this is a separate investigation different from what he just came out of the courtroom for literally but he failed to do that and so for that reason we argue and we could tend that she was representing and she did have reason to believe that it was necessary for her to be there while her client was being interrogated and questioned without question the question is where was she entitle to be intitled to move directly in front of the officer as the video seems to suggest and prevent the picture being taken or is that in your mana disputed issue  fact i think that is a disputed issue of fact around thanks for the question it is a disputed issue of fact our contention that contention and miss tila since going to ask you this you can see that in fact if you had planted herself directly in front of the individual whose photo officer was trying to take that that would presented a different case and refused to move when you say a different case would you have would you have a case if in fact the evidence was undisputed that she had placed herself in front of the individual in question and refused to move when the officer was attempting to take a picture well i think i think it brings up different issues but i think realistically your honor the question is about whether or not there was this action taken by mr stansbury was done in a retaliatory matter which is consistently against the law council let me ask you a question the judge ruled on that issue and now i may have missed something but the way i read your nine hundred eighty three complaint the federal claim a service was only said to be based there on the fourth amendment although in some briefing you mention the first amendment issue but if your federal complaint only related to the fourth amendment then why would you retaliation argument work under the federal claim though it might work under the bayonet well that's it's a great point your honor and i think it's a fair point so for the federal for the federal cause of accidentally three causes of action it is true that the only cause of action that we're pled were relative and pursue it to mr ellis and fourth amendment rights however you are correct that reason your honor we do believe that the first member rights come into the play of the analysis and then there's no on the fourth amendment rights issue it's an objective standard whether there's probable cause but on the first amendment issue if the action if the arrest was based on retaliation for exercising first amendment rights then i think it wouldn't matter even if there was probable cause that is right actively to arrest that is right your honor and that's what the case law follows it it says that regardless of whether or not there's probably cause if the arrest was done for the purpose of retaliation of miss tell it's and exercising her first amendment rights that it would matter about the probable cause analysis underneath the fourth amendment you wouldn't the court would even reach that analysis i wasn't trying to cut to the chase and least where one judges seeing this and saying what why should we affirm the dismissal on qualified immunity as to the federal three claims as pleaded by your client but reverse the dismissal on the bain act claim because there's no qualified immunity under california law and the answer is this your honor because we didn't plead a fourth and or a first amendment violation doesn't vitiate her rights under the first amendment it doesn't mean that those rights somehow disappear  we only chose to recover on the fourth amendment because we think the arrest was a lawful and that was ok ok and that was because we believed that the your breast was done in a is the exercise of first amendment rights here that you're talking about it is it or well you just explain to me what is it what she said yes and are we to ignore her conduct investigation can you separate the kind of interference with her saying i don't want you to do that well there's she have a legitimate constitutional basis in interest in being present your honor because mr jackson was her client someone is advised of or understands their rights then the gig is up so to speak and they don't get to bully someone into that hearing to that type of subterfuge and what i mean by that is this what i clear is that mrs tillotson was called out there because her client was being questioned and was being told to pose in certain ways in which  is not a lawful she had by sir clients of a right of his right then when the mr stanbury attempted to use the same tactics against mr harris she sought to advise him of the right and i think there's an important factual distinction here about this step that the court seems to be addressing and when she steps to mr harris aside at was in an awkward situation publicly attempting to investigate a matter where the people that he was investigating didn't know all of the facts and he didn't want them to know all the facts and he had no requirement that they know all of the facts in this particular situation a person who he understood to be an attorney for a different matter appeared and he allowed this attorney to speak to her clients to engage her brought to the extent that she actually had one in this particular case which was questionable until the point where there is this case beyond hope that if we invoke the court's mediation procedures that your office and the office of the public defenders could work o protocol that both sides agreed with and get rid of this of this lawsuit well we're here and we do believe that sergeant stansbury and officer nuker acted completely lawfully in this particular circumstance there are of course other procedures that are not before this particular court about addressing officers behavior but that's not what we're here to decide today what we here to decide today was whether sergeant stansbury reasonably determined that based on til it since actions that she was interfering with this investigation and he had probable cause to arrest her ok well let me ask you this i think that would be the correct analysis under the fourth amendment issue because it's a collective standard but the first amendment issue if there's retaliate for  only on that well first of all i believe the undisputed facts show that the vote for cause the reason for this particular arrest was her actions and not her speech so i think based on the undisputed facts in the record including sergeant stansbury statements in his deposition that it's in the record of two ninety three in two ninety four about his reasons for resting his tillotson and the fact that there is no facts in the record that suggests that this arrest occurred for any other reason there are no facts in the record in the district court at one point make a statement that he thought there was a fact issue whether your she thought there was a fact issue whether the arrest was solely based on the interference or was based on speech district corps did state that she was not that she was going into the qualified immunity analysis because of that issue but it was still a fourth amendment issue that she was deciding about it was not a first amendment issue it was a question of whether she actually interfered and believe the facts in the record so show that it's undisputed that she in fact interfered i do want to point out that for what it's worth there is pending currently in front of the united states supreme court the case of luxman versus city of riviera beach that addresses that issue about whether if there's a probable cause to arrest whether you can even consider the first amendment that has been argued was argued in february but what it says or with the question in the cases is whether if there is probable cause with you even look to retaliate and whether there's any way to substantiate a claim for at all even if it's motivated by speech if there is in fact there is probable cause if there is probable cause so that's that does this interplay between the first member and the fourth amendment which has been a continuing issue in the circuit and some other circuits and that case may be decided this week i'm not certain about that but that goes to the question of if you really motivated by the person speech but you also have that the person said but you also have probable cause you can from the conduct that she took part in when she stepped in front of the obvious or that's correct and that's what the case ignore is that a person's actions aren't completely removed from their speech an officer can take into account the words that are being used to interpret the action of the person that the officer is arresting and in this particular case certainly tillotson statements about what it was she was doing her stated refusal to move with him aside so that he could speak to her outside the presence of the two suspects and her statements when  he gave her a last warning he said look if you don't move i'm going to need to arrest you throughout this entire encounter sergeant stansbury was attempting to do his job to get this detention completed as soon as he possibly could but the one thing that troubling me here is seems to me that the the arresting officer has to be judged by the  circumstances that were known to the officer court now the officer if i understand it opposing counsel said that the officer had been in the court room in new ms till tillotson represented one of these individuals is that correct so he was not in the courtroom where these suspects had been subject to their proceeding he was any different courtroom did he know that she was representing one of these individuals in another in any capacity she did state that she was representing a client in that particular circumstance and there was no discussion about what that meant but clearly she was not representing her client in this particular sort of circumstance and in addition she was not representing the person that sergeant stansbury was attempting to photograph at the time that ms tillotson interfered i don't there's nothing in the record to suggest that the reason he was doing that photograph first was because he was then going to address mr watson and some other way that's possible but he did choose to try and photograph mr harris and not mr jackson  most likely in part yes you can see from the video that because this is the most tilted was next to mr jackson at the time so he was trying to get that done and then proceed to the next step so in terms of the you say counsel that it's beyond doubt that the court said that it cannot say that no reasonable juror could determine the plaintiff was merely voicing her objection and did not physically obstruct the investigation what are we to do with that so i believe that the district court has that wrong i think that that based on the record that's before this court and was actually before the court in that particular circumstance it's undisputed that she actually interfered is that because we can look at the video and make our own the terminations and because you can read sergeant stansbury statement a provide any such information and his testimony is in fact supported by the videotape it shows that he allowed all kinds of different people to speak surrounding this particular detention other people advising mr jackson and mr harris that they didn't have to answer questions for example that's also in the record and video to where you can hear somebody telling them you don't have to answer any questions so it's it when you look at all of the evidence in the case not just the video but all of the evidence in the case all it shows is that he allowed other people to speak and the only time he acted whereas when he could no longer take the photograph that he was attempting to take that he needed to take he plead for his actual investigation of the underlying crime so how do you  deal with the fact that if i have this correctly in my memory that the office of citizen complaints or whatever it is the initials are aussies he said that not binding or even relevant to this particular court or to the distro or to the well i was going to say that's certainly true but when i watch the videos i don't see any unequivocal statement you must step aside no you'll be arrested he said something like we can do this one of two ways you know like he did specifically step aside and give me two minutes to take these pictures or you know we can do it the hard way and i mean you know use those words and you'll be arrested and she said arrest me or whatever he did do you know he she said police did he did specifically ask her to step aside and to warn her gave her specific warning saying if you do not step aside i will arrest you and that's when she said please do and again the  evidence in the record from sergeant stan's various deposition is that he very much read that to say that she was not going to move out of the way no matter what he did and at that point that's when he actually decided to arrest her because he didn't have to engage in a standoff did he understand that they were this was a different investigation is that clear that's what disturbs me about this i understand but one question i mean again that there is no evidence the second record but of course she did because sergeant stansbury was not the officer who was involved in this matter that was pending that on which she was representing mr jackson she knew that incident report she knew who was involved she knew that sergeant stands where it was not involved in that particular matter and that this must be a different one so there was nothing to suggest that she thought that this was actually the same investigation and keep in mind we're looking at the officers point of view from this particular circumstance not missed to it since so he it's his point of view that matters here with respect to getting back to question about the act there was no unlawful through threats here to use force against somebody because of an exercise of their constitutional rights she was not because of the one forty eight she was not actually exercising  but he cited i know this because unfortunate was my case but the cornell case where they do talk about the requirements of the ban act and it is far more simple than simply somebody makes a mistake an officer makes a mistake about whether he has probable cause there has to be a lot more there and that's that's not this circumstance there's no indication of intent to violate has to be in some intent to do what you're exactly so unless the court has further questions i  it to quit kit would be different as it is your honour's this case is it really reminds me of one of the old scooby doo episodes where the bad guy at the end says and i would have had it all done if it wouldn't have been for you meddling kids right and that is exactly the attitude that mr stansbury had in this case right is that he would have gotten whatever information he wanted to from mr jackson and or from mr harris without counsel being there to advise them of their right what she's allowed to do you know well yeah she's a vi's she's not allowed to interfere sure but she didn't interfere there's no reason that the officer couldn't have still taken those pictures there's no reason in fact you can look to the reasonable reasonable list of other officers on that day off thirty one thing did take pictures of these individuals in the hallway now what they what they kept do is tell the individuals to pose in a certain manner or make certain fes facial expressions they're not entitled to those type of pictures but sure they can take pictures and there's nothing that miss to listen did that would have stopped mr stansbury from taking the picture he could still take in the picture and furthermore any further she said that they don't want to have their pictures taken but that doesn't mean that he couldn't you know because she objected to the pictures being taken doesn't mean that it stopped him from doing that that is a verbal objection right and she is allowed i'm sorry didn't she also at one point say we don't need any pictures that's what she said she said we don't need any pictures which is a a verbal objection which she's allowed to make  that verbal objection does not then give right and give way to an arrest for interfering with an investigation especially when she has a right to be there and advise her client  and if you don't stop talking to these folks that i'm going to arrest you there's a clear statement of queer sort of threat and intimidation miss to listen did not have to move this was a public area there was no reason these folks were not being arrested there's no reason she had to move somewhere else the officers didn't have any justification to demand that she move somewhere else for the arrest but it was the actions of this tell us and this was the representation of the respondents here and if that is true then that is a factual determination has to be made by a jury before qualified immunity can be granted because even the district court acknowledged that it's a close call and one that the district court was uncomfortable in making about whether or not miss tillotson actually stepped in the way and or prevented  officers from taking the pictures and with that nick counsel in my right there's that there is no qualified immunity under the state law under the  not your honor you are right as well your honor the analysis that we give in this a reasonable miss of this arrest is the similar and same analysis that would be given for the remaining state