july twenty eighth before you jump in do you want to reserve some time i did want to reserve for remodels three minutes rebuttal you're all right very well go ahead matter involves an event that occurred on july twentieth two thousand and eight i'm sure the courts where the facts on that day lindsey kay who was sixteen years old was subject to a false arrest filing a false criminal charges in the use of excessive force by hand over our town part time a police officer it is our contention that the evidence in the case showed that that possibly see how could you possibly see this that she stayed acted well there are no private employees from live nation directly involved in the confrontation with i think we can establish it first off there is no requirement in terms of a state action that somebody be physically present from the private employer we can establish state action if there is a plan pursuant to which the state  actor was performing his or her duties well let me ask you this why should we follow coups then since the officers here seem to exercise their own independent judgment well two things about cruise cruises deciding on a motion to dismiss and this court was very careful to indicate that there was no evidence whatsoever in the pleadings that there was any kind of a plan pursuant to which the officer was acting in our case we have significant me on this i presume you're now going to argue that there was an in house rule with regard to the firing and i'm trying to think of what cop in the nation united states wouldn't enforce a fire lane rule book the problem with and and help me on part two of it which is if live nation had a particular rule their rule didn't direct a specific somebody traversing it is not committing a violation of the laws of the commonwealth of pennsylvania to go to the extent that a police officer in forces that police officers doing it for somebody else's private purpose  you know move along or if they see the person is in some distress they can go help them i mean any number of ways in which they can address that particular situation and the same is true here isn't a police officer  could exercise their discretion to deal with an unsafe circumstance but that doesn't mean that they can use their authority to arrest somebody or charge somebody with a criminal offense there's a big difference between police officers ensuring public safety and then using their state water ice powers to to accomplish that if somebody was creating an imminent danger and they didn't move then a police officer might be able to arrest him for disorderly conduct and use force according other people at another crime well not to do with the state's well well actually it's based on testimony in this case and in another case involving live nation where the same people testified in the earlier case the seven it was a third a different location a different climate different place well it was but it involved the same policy the policy that live nation had and i think it's important to keep in mind that live nation contracts with hanover township to help it achieve security business of providing facilities for concerts and events and desires to use the services of part time officers to be provided by the township absolutes concerts and events so we have live nation we have testimony in the record that one of their correct cops are employees of the city the city makes whatever arrangement they will with the yankees so does that mean that in forcing their duties at yankee stadium the yankees are now subject to being defendants in one thousand nine hundred reactions no not necessarily and i think it's important in this court has noted that the facts are specific or the facts are what are important and you could have cases that looked the same with different results stadium example and this example is that live nation actually controls what these individuals do well it's merely that as i understand from this record the police officers only work for a live asia bonafide of police officers of the municipality well they were technically that but they were hired or what happened here really is that hanover township is a recruiting agency for the post is at the going to bring in police where to go what kinds of activities that they should be concerned about and how to do traffic control on the facts in this case on the night that is how the day this happened zoeller testified that  this wasn't a fire this was an a just a normal lane and that there had been an instruction from live nation to designate that as a no pedestrian lane so that so he was following their instruction that night his judgment was not the judgment that the terminated on going did everyone that was in that lane that night get arrested but i don't know your honor i know that this particular either of you know what my you know what my point is these officers exercise their independent judgment if if if you're telling me that there was a rule and the rule was nobody in this lane according to live nation then i would expect the factual  predicate for that statement to be everyone who went in that line was arrested a warning then that must mean i mean that the offices exercise some independent judgment i think there's a question of fact that is raised by the facts in this case as to why zoellick package in the way that he did we know they had a policy that said no pedestrians in certain lanes sometimes a fire line sometimes an ad hoc designated link we know that on the night in question that he was told to keep that lane clear we know that in the past other part time police officers in forcing that rule had used force had arrested people in the gentilly said that was fine so we know we start with we have a  rule the rule can be enforced by using force and then we have the night in question where here's the lane we don't want anybody in it and then we have a police officer who we would assume would only arrest somebody in charge somebody with a criminal we fired them to provide security in traffic control we have in house rules and we authorize use you to use your police powers to enforce those even in the absence of any reason to believe that a crime has raising i think appropriately is whether or not the police officer has substituted his or her judgment by the judgment of the private party if in fact there is a crime committed in the presence of the police officer the police officer can exercise his or her discretion and use their police powers the distinction here in this case is that the police were expected to use those police powers when there was no crime committed so your same example make the situation a crime  accident as well but that's true and in the these officers in that instance could conclude and have a reasonable basis to believe that this is where we conduct because that's one of the elements of disorderly conduct but if that's not there and our facts are there there are no predicate facts for criminal conduct on the part of my client the other cases that that that we've mentioned in our case were very similar to that again no no indication that there was anybody that was at risk for harm by my client or any of the other people who crossed these lanes so there was no predicate basis for the police officer to act so we can draw the inference that the police officer was not exercising his or her police judgment but acting pursuant to the judgment of live nation that we don't want people in those lanes period and i may point out to the court if i could under this state action analysis  one of the tests and says the crews test did the police officer substitute the private parties judgment for his judgment if so and he was acting in concert with a with a private party there's state action there's also another basis for state action in this case and that's where someone is a willful participant where were private parties a willful participant with a state actor and that's the wickersham case and that and that stems from the brentwood case is a isn't wickersham a red herring because that involves rules that were unconstitutional on their face no i don't think so i don't think that  you don't think it involved oh it does it have to be the rule involved explicitly the violation of a citizen's first amendment rights but wickersham the nicest to that's true and that's a that's a part of the state action analysis but there's much more here this isn't as if these police such a as yankee stadium with the police come in they're going to maintain peace by using their law enforcement authorities that's not the situation here we have a contract where these police officers only work here live nation hand over joint we designate the person who's in charge  live nation pays two hundred fifty thousand dollars a year to hand over township provides them with all of their equipment there is a basis for state action under the brentwood test of she's crossing the lane she's midway across and zoeller says words to the effect get out of the lane she has a choice of going back to where she came from or directly into the car that was ok and so into the car she's now in contends that somehow there was a struggle she contends there was no struggle at all that that driver unlocked the door he opens the door and just yanks her out she did nothing to deserve that there was no reason for force to be used  i think it's important in terms of how did this come about is there any possibility that somebody would be subject to this kind of conduct absent what we know about life missions rules and how it regulates the police that work independent judgment to make sure that cars didn't stay out of that lee ok first off there was it was an issue about a car being in the way there were no cars in that way it was over testified to that's what the lane is clear the only thing that happened is  so the facts are a little bit different than what the court understands them to be used as as we view the fact she was standing on the side just the cars parked here a wife mission employee told the driver it was ok to stop there and then my function as municipal police officers i accept when they work for libations they don't have an effect life asian as a private police force here although they are beggars of the national police the part villian or not or like they should not the question is as as the payload indicated whether the police officers substituted live nation's judgment for their own deciding how to handle situations the only evidence in the record felt that he had the ability to help or the police officer what to do have you could read it back that was just telling the dude to do their job but that's not the way i think a reasonable person could read it that he  told the police that they were to use force to remove someone from the fire line that they were disposed to cite someone who was in the fire lane or who cannot really leave the fire lane after they're directed to do so and that the hand over township police did that perform their jobs he said unequivocally no there is nothing in the record to contradict that flat out denial of any ability to actually talk to police how to perform their jobs we have chief to hold himself testifying both in sh question was whether there was any evidence that the police officers substituted life nations to actually for their own in deciding how to handle the situation and there is no evidence that live nation played any role and officers always decision it sounds as if you are saying that the only way you can do this is essentially a live nation employee were there whispering into the year of the officer now i think that if you had some or even i think if you had any evidence that the them without any thought as to whether that was an appropriate course of action or not some indication that the police were doing what libation told them to do without any thought independent thought on the part of the place  that there is no city locals or state ordinance against or with regard to this wayne being open the people seem to suggest that you know this law that was clearly the officers acting with regard to a li and i guess that's where i guess i can step back to there has to be some connection between the rule and a constitutional violation here i will say that like  saying no no people were permitted backstage a police officer told someone who a patron who went backstage to leave the area i mean is how is that a constitutional violation the question here is that there must be a connection between cars i'm not proud of heart appreciate your giving us the courtesy of allowing others to argue i've represented this venue and its various owners for more than twenty five years this is very important case to us are these officers essentially captive officers for this venue are they only working at this venue for the whatever number of dates and reflected in the full time police officers from a variety of units apologies in western pennsylvania they are hired by hanover township to supplement their regular police force for the nights that we have concerts while in record what you have in the be on this record it appears that these police officers were municipal police officers but only work for a live nation at that particular time on those evenings when there are concerts that's correct time this occurred they were only working for a live nation is that correct or not the line they should have a contract with i mean we're talking about how you know about tell me that whether my right yankees have eighty one degrees yes or until they get into the playoffs which happens every year has but let's just deal with the regular season  employed pursuant to the agreement so it's the same agreement for those eighty one days but on the other you know one hundred and thirty work days or whatever they're working for new york city yes in in  hundred thirty work days or whatever the number is they're working in whatever municipality they're an officer for is that correct most of them there are a handful that are full time had over township employees year round who also where you are you say you know it's funny i didn't understand that i thought i studied the states these officers that were there are not simply in their own lives officers working these handful of a is at live nation these are folk time police officers working for that township or some other township so we're talking about train individual absolutely they're trained for police officers they have the full training to carry firearms and they are full time police officers in either head or township or the surrounding communities not on this record you know i didn't i didn't notice i thought that gee i think that's an important point well i didn't understand that point until right now well what do you mean make this  know no difference of material fact the just the dispute in this testimony is immaterial allied nations motion for summary justice we don't care what the police police officer i've a shit head no there's not any any iota of evidence on the record that live nation had any directions to the police officers as to how to do their jobs whether you disagreed with  certainly knowledge is that he was working was and the distinction between a township officer and a position that you previously held was that in a part time post is that the villian position all of your duties were at the post is that the villian during the concert season is that correct answer who were otherwise full time officers at east hanover that right that is not correct or so i was like or well if the if that's not correct then what was the purpose of your question when you said let me ask you this is a page five twenty nine in the appendix line fifteen you say question let me ask you let's start from two thousand and five through to the present day and i want you to put aside for a moment any officers who were hired solely for the purpose of working at the post isn't the villian ok answer yes question and their offices hired soley for that purpose is that correct answer soley to be part time offices of east hanover for the post is that with the exception of chief yeah she's got hos a full time officer at hanover township he is the jointly selected manager of these part time police officers besides him and there may have been one other intermediate i supervised three person is officers worked whatever twenty thirty dates pursuant to the agreement for there is hanover trained and certified police but they only work for the pagoda and all of their days in the year had no other relationship with hanover township other than the hanover hired them to work at the post is that the villian beyond that there's no connection between those officers and hanover county there's another group a very small group maybe three people  ten hours for adams township and they work five hours for somebody else and then they work at the hanover at the post is a privilege they are all certified to be municipal police officers within the commonwealth of incapacities unrelated the police were yes in fact mr zoeller was employed by allegheny county as a security guard he didn't carry a weapon he was employed by allegheny county at  is that specific fact in the record because of the we know the fact of that this is this the only thing they do i would point to testimony of and that's what we have here traffic and pedestrian control he had the authority to say how it was done and and the point that was raised by misho was that well we can't tell them how to do their job  and that is not an addict with the fence here at all because if that were then you'd never have a private party engaged in state action based upon what a police officer does or what a constable does because every time that would happen the private party could say well i didn't tell  as the as the brentwood case as it's a normative analysis and you look at whether and here's a standard is it fair to attribute state action to a private party under the circumstances and i w that by any standard attributing state action to live nation in this case is compelling they hire a police force they jointly determine who that she is going to supervise and they tell them what to do they pay their wages action on our facts there is no criminal activity to warrant police action and if you take our facts and his conduct is consistent with the instructions that he had from live nation to enforce their rule i would point out if i may that in terms of you don't need to i thought nothing further i think we're going to thank you this case is extremely well argued and we appreciate all of your effort