you read the two magistrates reports and recommendations they are very clear that the court is weighing the facts and adjudicating the facts which is not permissible in the world twelve b six proceeding the most analogous case that i can find to this one is the us supreme court case of tolar vs cotton coming out of the fifth circuit in two thousand and fourteen where the supreme court ruled that in the summary judgment proceeding under rule fifty six the facts have to be viewed in the light most favorable to the plaintiff and they all inferences have to be drawn in favor of the plaintiff in this case it is abundantly clear that did not occur  can the only way to do this is to go through specific examples of what i was alleged in this case is that there was a conspiracy to wrongfully arrest mr hartman and maliciously prosecuted him in both my second and third complaints i i pleaded excuse me all the elements of a civil conspiracy and i also pleaded constitutional violations so that my civil so that the malicious prosecution claim was being brought along  side a section eight hundred eighty three claim the first constitutional violation i pleaded was a wrongful arrest the trial court looked at the evidence the evidence consists primarily of an audio pen that my client was the walk that's paragraph thirty three's alleged facts yes yes but why isn't that alone in the middle of an ongoing proceeding walking up to the bar the court summoning a bailiff and then talking in whatever tone if you're then told that we have to do this outside and the person says no sir or you whatever the pen recorder reflected that the that the gentleman said you cannot a lot you cannot allow me charged and arrested him the ten audiotape and the chain as reporters record demonstrates clearly there is nothing taken down as coming from hartman at all until broussard's began the arrest process and began putting the cops on him that's the first time you spoke now through what elements it doesn't reach when you have admitted in part of the walk in the door you come out you summon the bailiff over there and then whispering talking whatever level of volume and then the bailiff says this is happening outside the courtroom and the answer is no sir problem iran is that they falsified their records respectfully the case law is abundantly clear those are your facts that's paragraph thirty three so we can even if we do the franks the delaware carve out all the alleged falsified cations we're still left with the irreducible core that meets the elements of what they charged you with that's disagree with me obviously because i respect you disagree with you and i can explain why i believe and i can if you want to can  refused to leave as your honor of unless i'm mistaken of the case law yeah once if let's assume that you're right ok and that they had probable cause to arrest him yes but the fact is they clearly what the case law is i thought in hero vs fish fry didn't your brief at page forty it's a clearly critical test in other words we carve it all out that's the cancerous material put it aside franks be delaware but you still are left with undisputed facts that this state misdemeanor disruption offense occurred the disruption that he was charged with was disrupting court proceedings the annoyance yeah that's the thirty eight thirteen in it but ok but you can help me there that's texas law what's what why does that matter i agree i noticed that in congress very dirty versus forty two and five they were going to clean they could have charged him with resisting arrest or some other charge they charged one hindering a court proceeding the a noise and this is why it's important that whisper is important that's why the whispers important right there's no audible no you started basically they're ok and that's it comes down to the coming certainly i can go through the penal code think of other misdemeanors he may or may not have done now when they say disruption via noise a whisper you have to say one was the noise the noise occurred during the arrest process the that is abundantly clear through the facts mean you can look at the video to the audiotape it's even on egypt and you can listen to the tenor record in the reporter's record where she types it up how many p t o audience are there in the record there is his pen recorder there's this cell phone was recording this also not not that i'm aware of is how many are there there's the th is video pen recorder which shows in approaching the bar yet that activated in court there's no texas policy against that that's correct ok that's lawful unless a local will prohibits a but there's no penal code violation the only other recording was the court is required to record the audio graphic set of graphically and then she's able to see can erase it after she checks to make sure that what she typed was accurate and there was no noise from hartmann until the rest  pen that's correct that's correct so that's why i take the position of when the matter what he did was right or wrong he could not have disrupted the court proceeding the annoyance until the time the  it ended the charge was you can't arrest you can't say you just he doesn't dispute that he called the point bailiff over and he made a very clear when can i serve so he's speaking in court yes but it's not a bar i understand that your honor but one thing is very important on the video plant which he had running so he obviously wanted it on the record yes it's a custom of that it's a custom of that particular process server business it was a ploy if i ma point this out it's very important if you look at the the video judge walker has has a da in front of him has a defense lawyer has defended its conducting business there's no disruption he's disrupting the bail it disrupt the court the bailiff is part of the court staff they are the bane of their to gage in court functions not to be having to talk to some stranger who's up there to serve a judge i mean i  when you look at the when you look at the in recorder i mean what claims do you have that a bird derivative of your nine hundred eighty three false arrest if we found that there was probable cause for these disruption offenses what claims would you there's also as part of the malicious prosecution i mean and i am answering your question the the affidavit the falsified search warrant for the the search the falsified its affidavit for the search more to have the police look at the pen when they thought they'd already arrays the evidence ok so those are completely independent of the d a p or best case from our court that you can pursue a malicious prosecution one nine hundred eighty three case even if there is probable cause underlying that crime alleged is there one no your honor and the think the reason is because i could not find anything and i did look for this to say you could pursue a prosecution with an illegal prosecutor counsel for m marks there was what clearly could be objectively looked at as as deliberate if there was one set of progressively tightening hangups one could easily say that would be a mistake two sets is almost impossible all three sets to progressively tighten that appears to be deliberate also when you have a man who is in the the holding cell for proximately several a half hours and not allowed anything to drink that appears to be deliberate cruelty is he was in coffs this progressively tightening cups for thirty minutes he did not know how long he was going to be there certainly is testimony of discovery was allowed is going to be he was very frightened he didn't know if he was going to have permanent injuries as to results he just did now the mortality so i believe that's also independent but to go back to the whether or not there's probable cause for the arrest one of the biggest problems that have here is it was an illegal prosecution and because it's illegal that renders it malicious on its face your best authority from any circuit for that statement is couldn't find a case where illegal prosecution was justified however i know i cited some cases in here your honor we have if it if i may join rebuttal option i look at that question certainly i mean it's great yeah ok because i know that i cited the i know i cited some cases stating that and what's important here is that there was no attempt to even come up with the documentation until filed the motion and judge johnson in the trial judge was in a situation well there's absolutely nothing he can do except as mr case there was no authority for the prosecution so i believe that the at one minute thirty five seconds the the pretrial the detention of the fourteenth amendment springing from the eighth amendment is viable certainly the constitutional violation related to the search warrant affidavit in both the second complaint and the third complaint i pleaded all the facts which were omitted from the search warrant which i believe this court's decision cola vs and delayed because of what back in now what i'm suggesting your honor is that this is a case where there were findings of qualified immunity and this court ruled and blocky in two thousand and twelve that i can't take discovery absent permission from the court now i understand that so i didn't do that discovery because the the standard is not and it is a ball and twamley is not proof it's plausibility based upon the factual analysis in my last twenty three seconds  question i can answer for the i'm kathleen kennedy who represent about twenty defendants in this case just want to touch on a couple of things mr hartman's attorney did first thing regarding the discovery the trial court made it very clear that the only person of the only party that filed a motion to abate any discovery was defendant judge walker i did not file a motion to abate any of the discovery in this case and even if i did it would apply to jefferson county so in that regards mr hartman's attorney did not ask for any type of limited discovery to any of the or immunity defenses that were ever asserted so since he never asked for discovery he wasn't prevented since there was no motion to abate by my twenty defendants i don't think he should be able to claim it now  looking at some of his responses to the twelve the six he doesn't ever ask for unlimited discovery he basically asked for general discovery and one thing that's really important i know from the record that you all have it's just a very large electronic file but what he was serving on the defendant was not only the petition but many many many exhibits and under the federal rules eight if it's attached to his petition it is part of the pleadings and all of these exhibit included the probable cause affidavit by all the deputies deputy broussard louis barker it includes affidavit from his own client it includes all the witness affidavits it includes the law many many many things court the right to look at as well and because it's part of the complaint it is these exhibits are part of the complaint the trial judge is able to look at that and the trial judge did look at that specially in the affidavit he actually in the recommendation in order actually compared all the probable cause affidavit and basically and looked at it to the pin video and the pin video is probably the most important piece of evidence that was attached to the complaint is we can actually see what actually transpired and the questions that this court posed to opposing counsel is extremely important because a disturbance doesn't have to be just noise now judge walker was in the middle of not the first or the second probation revocation he waited till the third probation revocation to stand up from this side of the courtroom he was on the left side if you look at the penn video there was an opening in the bar right there he chooses not to go to that opening of the bar to try to motion to a bailiff he also doesn't motion to the bailiffs before court starts from the video he gets up and according to deputy lewis which is the female bailiff that originally approached him her probable cause affidavit she states she sees him get up and as he's walking he's judge walker as he's walking to the opposite end of the bar at that point she believes he's going to approach the bench and she then approaches him and everything that mr hartman says is completely audible on the penn video so he tells her he doesn't whisperer he says it in whatever tone of voice he doesn't ask for a break time he basically says i'm here to serve process on the judge she goes back to deputy broussard and you can see not once not twice but three times as deputy broussard is walking towards him he's motioning for him to either sit early you can't tell from this type of movement but he's giving mr hartman time to make a decision to do something now i understand their argument is there's no noise but at this time there is a felony probation revocation occurring  chances are probably ninety nine point nine nine percent that this person is going to prison at this point the bailiffs have no idea who this person is is he a family member is he a victim who we don't know who he is so it's obviously justified dot deputies wanted to stop what was happening and find out what's going on they tried to remedy the situation only unfortunately mr hartman objected not once not twice but three times i'm here you deputies and they drafted their probable cause affidavit on that disturbance not a noise but a disturbance now the fact that he was not charged with that crime i think is kind of irrelevant because as long as the deputies believe that they had probable cause for the arrest they're still entitled to qualified immunity regardless if the prosecutor chose that crime to charge him with or a completely different degree of best texas case just warn for each of the two crimes so we can see the elements what's the best would it would shed light on why he was charged with thirty eight thirteen but the brief perceives there to be probable cause for target forty two of i guess you could make an argument for the i didn't research there is to to they would surprised to forty five but the fact that that their officers have probable cause at that point for a disturbance in the courtroom they do have probable cause for the arrest and because they would have probable cause for the arrest that probable cause negates several other claims that mr hartman makes and i can go through them and the rest of my has questions and so with there being an actual disturbance in the courtroom which got the bailiffs attention it got everyone's attention people sit in the jury box it did stop the court in there is a transcript from ms tanner where on the last page i believe in the exhibit it basically shows where court stopped the court is asking what's going on and once everything happens the court then says let us resume from this interruption so it does stop the proceeding the falsified probable cause affidavit mr hartman doesn't exactly say how it's false basically because there's probable cause for the arrest it's that they're not false the trial court found that they weren't falsified minor inconsistency is can be from memory nobody can remember verbatim something that happened whether someone says whisper or spoken you've got a different scenes of of words that have some leniency there's no falsified added affidavits in here mr hartman just talk about about manus again since whether maine is did or did not formally recuse himself in order to have mr alford appointed by judge flores again that wouldn't give rise to one thousand nine hundred eighty three claim again at best it would be a state law to the excessive force claim that was my opposing counsel and i think maybe some of the the way it's described is a little maybe confusing mr hartman is a very large man and according to mr barker as a probable cause affidavit which is attached as exhibits to the compliance he not only is a large man but he has very large wrists so what they had to do was use three sets of cuffs to make one long probable cause affidavit which is actually a supplement to the report it's attached to the second amended complaint if it goes through that that he's that he's a large man and he's got large wrist so they had to use multiple cuffs thirty anyway he and i specifically asked mr hartman if he's ok and mr othman replies yes he also complains that he wasn't given anything to drink during i think it was about five five and a half hours that he's been detained behind the court and he's given a sack mr hartman is restrained he's treated the same as the other inmates that are coming in and he doesn't argue anything to where he was treated any differently or has any other excessive force against him reference to the deputies and i'm only basically gleam in this from the fact that since want to blame it wrong that basically at the time maybe when they finished the morning docket and in between the afternoon docket is when  the judge walker got off the bench and went in there and allowed him to to serve him with the papers and that's what i glean from it because it is seems to say that there's some point that he's still in there after he serves him and the afternoon inmates come in there can't be a nine hundred eighty three claim based on that it's you can't base nine hundred eighty three claim on stone state court violations the illegal prosecution wrongfully filling out documents all that's based on state violations therefore there is no federal question there  kennedy for co dependence is absolutely right i think this case really boils down to the fact that they attach the pen recording to their petition or to the complaint the penn recording clearly shows what it shows he went up and in my brief you know we point out my abs observation of the video that when he's up there when he's making this disruption which is a violation of forty two point zero five people in the courtroom are turning around people i guess attorneys waiting for their turn in court in the jury box or turning around you know once the officer broussard approaches that this is a disturbance in the court this is causing people in the courtroom to turn around what's going on so this clearly violates forty two point zero five he's asked multiple times told multiple times leave leave leave he doesn't you know if an officer tells me to leave the courtroom you know you leave the courtroom he didn't he studies ground at that point under the forty two point zero five he recently anticipated could have reason to suppose what was going to happen next and that was he going to going to be arrested  that he agrees he concedes that judge that mr walker had judicial immunity to affect this arrest of this courtroom so i think as far as the arrest goes as far as my client goes the council's conceded judicial that i think that's a moot point qualified immunity clearly exist in this case at the time under the rodriguez case from this circuit when someone's arrested their cell phone could be searched as reasonable right instead to arrest therefore under the first prong of the qualified immunity there was no constitutional right that was violated therefore the cell phone search there's there's no violation of no constitutional right moving on equal equal protection claim in his brief the only thing that opposing counsel argues as far as equal protection goes is that we violated his rights by arresting him when we wouldn't have arrested him someone similarly search situated there's a reasonable there is a probable cause to arrest him here you know that the video cameras evidently clear there's probable cause therefore there was a rational basis to arrest him here there's no equal protection violation so that constitutional  only as far as the perjured search warrant affidavit goes i think judge hawthorne in his recommendation it was set out very clearly that even if the information that opposing counsel says was left out perjur into a search warrant it may give the even additional grounds for why probable cause for that a crime occurred exist therefore giving the boma police department you know i guess the judge probable cause to issue the search warrant to go and see let's see what's on the because there seems to be a lot of allegations of wrongdoing surrounding  court in texas has its own electronic device policy i'm not going to represent whatever my zachary is an officer of the court what's your experience people can walk in with these pens that are video recording everything i wouldn't do it on my  experiences and i've never walked into a court with a secret pen so i'm not if you don't know if an electronic device policy but they some ports do absolutely do especially you know recently i was involved in a high profile case you know that the courts will say they'll post on the courtroom door judgment of the court below thank you very behalf of i believe joe offered he was the desert district attorney protium that was appointed in this matter and i asked for just a brief minute of your time in the argument in order to point out one important factor the pla appellant alleges that he was an illegal prosecutor the texas courts that we've cited in our brief have consistently held that the requirements under code of criminal procedure two point zero seven are not fundamental rights but it's merely a procedural process what happened here was he was asked to be the district attorney asked for district attorney protean to be of for the issue of can you have malicious prosecution the nine hundred eighty three claims brought alongside malicious prosecution i believe in cost a lot of the fifth circuit has the test is whether a constitutional violation is part of the overt acts forming the malicious prosecution i'm a few other points i'd like to make unless you have any other questions in that regard the dismissal of the prosecution as illegal could have been the peeled it was not appealed to could have been appealed to the state courts that's arrestor to cotton issue the prosecution was dismissed as illegal and was not appealed he can't come back now and say well there's an argument to say only on the issue of boquet and requesting discovery the baki decision if i recall correctly states that the trial court has to fashion discovery ok it's not up to me to do so but i did in every single in every single motion to dismiss opposition for defendant who was sort of qualified immunity i sided backing i would question a right to take that person's deposition on the facts related to the qualified immunity defense i certainly made that allegation and i went through that and right now you know i requested i apologize if i said asserted that's wrong i did i'm sure you didn't i'm sure i did are not the best speaker in public sometimes but i did ask i asked in all of my oppositions to take a deposition on those issues related to qualified immunity and i respectfully  in that regard another thing is the excessive force i disagree with in this kind of these versions of the facts she is an excellent lawyer i just disagree with her my client is testify that there  will testify that all three were on him the idea that three were needed the justification post hoc i know he would testify your honor on that issue he has not testified but the three handcuffs were on him i wondered a cruel treatment excessive force claim is a fact intensive inquiry this court has recognized that and that should also warrant to scuppering a few other things pertaining to the fundamental issue that your imus's raised whether he disturbed the core proceeding via noise that i submit if you look at the audio penned evidence it shows that nobody is looking at hartmann because you can see forward to where judge walker walker was judge walker at the time nobody was looking when he whispers to the bailiff williams the only time he becomes the center of attention is during the arrest process if the argument is that the arrest process disturb the court then mark my responses he has to have done an actionable crime prior to the arrest well allegedly he did he refused to leave to move away from the bar during a court proceeding you are to respectfully and i understand the court's position i'm not trying to quarrel with you but i believe the few look at the by one way of looking at the up the video evidence audio video evidence is that did make three hand gestures no question as he walked a walk very quickly toward hartmut i timed it correctly represented to this court that that's a total of five seconds i don't believe there's any realistic way sit down be quiet don't speak again but it's just not entirely clear the conversation that was picked up or the audio that was picked out started with officer br now also i'd like to point out briefly that barker when he recanted that was one of the exhibits barcus recantation of his original rest report it does reflect that hartmann complained during the arrest process that his arm was hurting that there