s if that's your position what do we make of supreme court language that talks about the right being clearly established not causes of action not specific claims but a right being established well meaning hard in the court clearly said probable cause was a necessary element of a retaliated by a prosecution claim but it did not address whether or not there was a remedy under bevan's and whether pins extend to the first amendment sure but the right being spoken about is of the right to free expression without government actors retaliating right i guess is the challenge here is you're right there's a ladder of abstraction while you seem to want to say no no the you have to be perfectly concrete in talking about the cause of action there are some cases that i would like you to address that talk about this in terms of you know you have a right to be free of retaliation by government actors for the things that you say what was your response to that well in this particular case that again being airport security  n the court has never extended bevan's to that first the number protection the only case that existed at the time to consider it was a random case in which the past asserted the first amendment right and the court said no that we said that we believe the extension of the billions rule to violet the first amendment rights to be both justifiable and logical in other words if you've got a first amendment retaliation c overruled pat i'm saying they certainly called into question such too to the extent that they left for was unclear as to you know what the right was that was that was supposed to be clearly established under so so you think that a reasonable to say officer could operate under the impression that it's ok for him to get upset with what somebody says and therefore to saying is it could have been you know it was a foggy area so your assertion is a reasonable to say officer could think i'm upset with that i'm getting back at that person and i can do it by because of i should really raise this at the outset thirty and it goes to the raising of qualified immunity here because we have a two claims right the first amendment and the fourth plaintiff with that crittur my understanding of what you saw here was summary judgment as to the first amendment claim but i don't know that i saw you seeking that before the  but in any event of following up then a judge jordan's questions that that assuming that bids does extends to a first amendment claim here  what does the what does a plaintiff in these circumstances need to do by way of sufficiently invoking his first amendment rights for purposes and then saying well you retaliated against me for my having stated we're done this because i understand the record here to be only that it is a did insist that he was going to make report and want to know how to do it i believe the videotape shows that some of this con at the scene was somewhat disruptive as well it was not truck to perhaps to the extent and when to where they had to close down the line of the pastor's coming through the security screening but that is what the immunity how how can we have jurisdiction to try to deal with an issue that wasn't discussed at all in the district court as i said before i believe that raise the alarm to the logic of pat and pat is and it's pretty clear it says root cause of action for federal infringement of first amendment rights and agree even visual could see the images for violations of his first amendment rights nobody could come into court should mr get a clark decided to soothe the state officials that is the police officers and say hey wait a second under nine hundred eighty three there's no cause of badge and the fellow with the state uniform on right here because the state badge should be treated differently there's no logic to that is not fair there's no reason that pot should be on the hook and the federal agent should what's the what is wrong with that raising propel what has decided to imply that cause of action but as it has cautioned repeatedly since and particularly in the courtroom consider in the first instance whether extended interview context here this national factors of the national security of the united states let's let's brief and and i think the panel would like to hear from you with respect to what those interests are and why they ought to override some of the other jurisprudential concerns that night you did express shirt so congress created the t s a in the wake of the september eleventh attacks specifically to preserve national security in defense of the united states and it got by creating t s a officers who are not law enforcement officers who instead have a more specific and focused approach which is t and baggage that board commercial air caught in the united states which is a tremendous volume approximately two million us interest six million pieces of baggage a day and their duty in doing that is to identify any potential threats or suspicious behavior in order to prevent that from getting on the aircraft as we know on average about five loaded firearms are found in carry on baggage every day effect the miss kaiser is as the t s a agent would explosive in paul in this device what we're arguing is that t s a agents generally have very broad my teacher really any concerns to police officers away from my question wouldn't wouldn't mr kaiser had been perfectly within the realm of his responsibilities to have contacted the philadelphia police even after it was determined this was not an explosive device but should be a personal call of action could all because of the great national security interests of this it were the term the concept probable cause pops up within the briefing here and there and i'm wondering given the because t s a officials are not trained in regional splits is reasonable suspicion of probable cause the point the only fault is when there is anything that is potentially destructive threatening suspicious that they can make that  get out of this case you're uncomfortable working in this case imagine a case in which his agent says i don't like the work of that person or that person said something to me but i don't like the way that person spoke to me you know i'm calling the cops and saying this guy just threatened fifteen passengers to me he said i'm going to shoot people i've got a bomb but there's nothing the t s a agent can say or do that puts him at risk because the t s a screening is so sensitive to see agents really can act with impunity that that seems to be what you're driving at so if i can the ninth circuit had a similar that would contravene anybody's constitutional rights at a level where there would be a remedy so obviously they're already personal damages ready remedy so there are alternative remedies pants which should speak right because in this instance in this instance the united states substituted itself for mr keiser for other sins and it took the state remedies off the table that yes right so there weren't state remedies and then the united states after it did that took the position that there's no federal tort claims remedy because he's now wrong force an officer so what's the remedy assume rageous t s a agent mind bogglingly bad and retaliatory we could man woman so you've taken all those things off the table what's the remedy the remedy is within congress control so you're saying there's no remedy i'm saying that if there is to be a personal vengeance remedy here congress is in the best position to create that in the first instance because leaders say and there's no ready right as of today for business remedy but you've got this other thing going for you what can you point to well other thing of any sort or you point to to say well that's the remedy and that's good enough so i can will keep differential it's the inquiry into the remedy a seen from the inquiry into whether there are special factors but also against the creation of a remedy so those are two distinct inquiries and although we pointed to as you know these attorney to me that's not our argument it really is based on special factors and  bill i'm hearing you say from the united states perspective there's no remedy and that's ok because congress if they wanted to they could make remedy but as of now no remedy and that's ok that's the that's the legal position the united states of america but it's pretty clear that your position is because united states and it is through the course of the litigation there's to be no state remedies because you substituted there's to be no f t c remedies because that's a position you took and you persuaded the co so you're saying there's no remedy and that's ok because if congress wanted to give a remedy for the most outrageous behavior it could do it but short of that no remedy right correct  maybe not such a great plan but he did what he did and that's not really where you're focused right correct ok you don't you don't assert that that the t s a agents have to have probable cause before they call police here in terms of whether or not a person has a right to call the police i agree that that is not an issue this agent or not anybody has a right to call the police i would be out some it and i would agree with the court however in this situation examination in that there was an arm waving you know we don't that you don't agree with there is no disturbance created at the airport whatsoever according to any every witness who testified in this case in terms of the video itself and every piece of every deposition or evidence and put in this case the will that one moment where anything was disturbed at that airport checkpoint now though of course the agent should be all over you should be looking at something like this in their training it could be a pipe bomb and they look and that's what they did he sa but it's just by writing things that it's you can the inside it it was a watch and wires there's a heart modeling piece of the watch that went around the person's torso which sends your heart rate to your the watch that you wear on your on your wrist but that's all that of this would you please this one of the the heart of it is where the chief justice taking to go it was a combination of this concern about the initial concern of the sure looks like a pipe bomb and then what you look this is a very significant highly sensitive national security thing we're talking about people get used to walk in the airport and they think it's no big deal but everybody safety depends on this if we have what happened was something much more base much more viable and it really was nothing about airport security the airport was secure the entire time he was there that day the airport was secure after they put him in custody it was secure because it had nothing the judge ordered saying what i was about to say because it is absurd on its face to suggest that a citizen who wants to fry has to surrender their first amendment rights from the wrong to the airport and it's absolutely patently absurd to say that and that night it somehow created that will  george which was this court's case oh we said we were assuming it applied we didn't say we're finding it apply we went out of our way in a in a footnote to say you know you could go you could you can look at both sides of this i have a question but for purposes of our discussion we accept it we accept it for the discussion and assume that it applied that was a finding was that was an order i appreciate and will continue to employ a person that the record the video and trout baskets truce has produced and so i think we do have to start questioning whether we should listen to the souter and when it comes to our constitution one specifically of person on their rights in this particular instance out about he said he was flailing his arms around he said he was pointing in space and the video shows was this man walking through the airport at every moment and he never did those things that's something that if the court starts with the idea of  and fall back on something like that to put mr banta cop in the situation where he's in now i was going to raise the issue of the other man who's and how the government at every step of this way of this of this case has shut down those rooms from do something that is dangerous they do carry guns they do put themselves in harm's way they knocked down doors not knowing what's on the other side we can sue them but we can't sue a t s a agent doesn't make sense there if you make a mistake when you're knocking down a door it doesn't mean that airliner is going to drop out of the sky with a whole side right it could mean that federation is life or whole life it would absolutely be a tragedy but it would put hundreds and hundreds of people at risk you still employed in his usual capacities and using a little surprised to hear counsel say that yes as anyone can call the police i thought that that was what was being argued and certainly that was what the district well if so that's brand new law and so then we need to question whether that was clearly establish right that that point of can rely upon but it only came up at oral argument and then subsequently in the judge's decision so i  funny probably because it was based on the alleged dr i mean you can't you can't run in that circle very comfortably kenya i mean you can't say there was probable cause and what was the problem because there was the rice you can look at the right because there was  and the plaintiff there was an inspection of his bags and there was a consultation with the prosecutors it was in other words a third independent sort of made it too little noise to report to the police and that report and that call