thank you good morning judges of the court of appeals i'm tom girard and i'm arguing this morning on behalf of the defendants i reserve two minutes for rebuttal your honour's i submit that the the key to understanding this appeal is to embrace just what the situation was that the new haven police walked in on on this day in october of two thousand and ten we're talking about a second floor bar there's a stairway up that has occupancy of one hundred fifty people and there's two hundred fifty people in the bar there are yale students mostly mostly under age and the fire marshal wants in he wants to count heads and to right up the owner the liquor control commission wants in they want to check for underage drinking and right up the owner as well and it was the haven police officers responsibility to get these civilians into this area so that they could do their job and if you can imagine what they encountered you have seven to ten police officers dealing with two hundred fifty kids  twelve thirty at night they've been partying until twelve thirty and they come in by surprise and say we're here to count heads and check i d s so crowd control is a challenge to say the least and what we submit is that based on the actions of jordan jefferson our plaintiffs just on just what he says he did nothing else but his version of the event so that's why we're here on this drug so that at least i and you are on the same page and i assume maybe my colleagues as well would you just recite what you believe are the facts that confronted the officer with respect to jordan jefferson yes certainly you're referring to the point of view of exact yes yes absolutely what  facts are are we going from when we determine when we review whether your office your client should have had you know they understood he was told to not use a cell phone to put a cell phone away right and he took a cell phone out and pressed a key or two to turn it off well if that's his version to turn it off and that's the one we're using it right right understood with me so far ok he was told he was moved to another area told not to talk to others and he was speaking to a friend who was passing by and he said i was told i was i thought i told you not to talk to anyone any pushes back and saying a basis for the order to not talk to anyone because if you  attorney at that point in time no i would was he under arrest i mean it's an investigative detention he wasn't under arrest of anything it was investigative detention in support of this liquor control commission and that he had even perhaps even more right to contact somebody outside right he's not under arrest u k he wasn't told he couldn't go anywhere well he was he was told to stay right where he was yes he was told the basis for that was because they were doing a a check for underage drinking a protective sweep underage drinking and fire code violation so this would be an investigative detention he was not free to leave from where he was so what did the officer have probable cause to do based on the fact that mr jefferson took out his phone and turned it off the facts that i mean we're stuck with those facts right now and said when asked by somebody passing by are you ok and he said yeah i'm ok well it's that's really just strike two and we're not claiming that there's a strike three to this is very important but he was said you're under arrest well no this hasn't happened yet this is ok sorry keep going and he said you can't you can't talk to this person and he pushes back why not he's my friend then you're under arrest so based on that story i forgot the last part it's key because now we have interfering with police under connecticut law is laid out in our in our brief period clearly it you don't have to have a successfully completed interfering wholly or partially that state versus a lawyer cited a page twenty six of our brief i think the best decision this court has no last asking the question is the tipping point yes and the reason i have a case that says that that amounts to interference with a police officer france right yes i'm sorry u s district court for connecticut he set a new haven for many years and he decided her pull verses joyce page thirty one to thirty two of our brief and he explained that even passive resistance causes a distraction and it draws the officers attention and cases where police are outnumbered at a scene any distraction is interfering and so he's interpret in connecticut law and there's a long quote from that case and that really i think is the linchpin to what we have here because if our our new haven police officers had had judge cobra honest decision in their back pocket and they had just studied it there is absolutely no way this could be on qualified immunity and not arguable probable cause because if every one of those verses williams from the connecticut supreme court doesn't require more than well it is our scenario i think is different because we have to have two hundred fifty people and if circumstances yes if this is a two person motor vehicle stop and you have two guys sitting on the curb and they're talking you know and say why can't i talk to him any protests well now you're under arrest for interfering that's a different story this is a two hundred fifty person bar to fifty six college kids who've been partying it's twelve thirty at night and the police a surprised them so that's a totally different circumstance that picks up just on what judge to brownnose is talking about here so that's something else and that's a supervisory liability right there's an issue here whether you raised qualified immunity as the two supervisory new haven police officers or whether you just raised in your reply brief i didn't see it in the air initial brief really  versus katz qualified immunity and alice is the very first step in the analysis is was there a constitutional violation and then the second step then is was the law clearly established and then and so what we're claiming in our case is that the men were on the first floor and meaning the two supervisors were on the first floor so we're really not arguing law it was clearly established they were not there when the an incident happened with mr jefferson and that's the only way we can do what they they still we claim have a right not to have to go to trial if the evidence is clear that the first step of the qualified immunity analysis could never be proved as he would be raised in that way and yes that's where it's a very technical question really you know you and i know you're a supervisor in liability of they were on the first floor there was no issue of fact that they were on the first or if you use the phrase qualified immunity that before the due order that the before the district where there's no oral argument so we didn't use it before that we rely on what just what the motion says and what i'm hearing today but the way we have the only way you can say that you're not going to say that because of this case there's no liability there's no liability because you can never get through step one on the saucier analysis  the only way we could that's the only way we could go so we just said there's no liability i just want to point your honour's to pay page four i'm sorry for seventeen and page four thirty three of the joint appendix it's the same piece of testimony and what they what that is is sergeant juloos this testimony that they claim is the reason why there's an issue of fact on where the supervisors were doesn't actually support that because  supervisor melendez the sergeant joe loses said i don't know as exact position i'm going to assume which is very bad but i'm thinking he's with the lieutenant but you don't know no i don't know and then regarding chief limone what about was no i do not so i submit there's no issue of fact i reserve my remaining time for a bottle before you sit down and you just give me the paper the joint appendix page numbers yes or seventeen to four thirty three no actually the same piece good morning your honor is my name is rosemary and i represent mr jordan jefferson the plaintiff appellee in this matter here i suppose there are i think there are many different versions of what happened here but in the light most favorable to the plaintiffs i'd like to point out some additional facts in the record and attorney gerard indicates that this is a second floor club that th opinion or the words of the d j who's in the business of doing these kinds of clubs this was one of the better run offense the police come up and almost immediately lights are on music is off and control is a stablished that is in the record in various places in terms of  how this place got chaotic review of the record in the light most favorable to the plaintiff and in the statements of most of the yale students in the affidavits and with mr jefferson the chaos was caused by the police themselves so you agree then that we can consider the context of it i think that mr jordan argues that you have to think about what was going on in the club not just with mr jefferson in other words it sounds kind of not enough for interfering as you want to talk to my friend or i'm turning off my cell phone but if there's chaos surrounding that the police are trying to control a crowd of two hundred fifty people can that be considered actually not on this record because on this record at the time those words were exchanged i believe all the officers agree and all the students agree the students were filing out what happened here let me just give  brief summary of the facts here this is operation light life and there's a new chief in town chief lamond and they come up with a plan to do liquor compliance checks  alchemy elevate which are the two clubs that are up and down are the clubs that are on a list so this is supposed to be just a liquor compliance check and through the actions of mostly lieutenant redish this turns into a actions of the police with a raid with a gun threats of violence except era so when you look at how this got started it immediately starts to go off wry but what the students themselves has said what the staff has said is that almost immediately there is compliance and so you know when you look at all the context you have to look at the up and down even though the police made it chaotic at the time mr jefferson said i can can i talk to my friend or questions which is allowable under connecticut law everything was orderly so considering the context at that point in the light or at least we have to assume  analyzing the qualified immunity claim excuse me i'm sorry at least we have to assume that everything was orderly and come analyzing rest the qualified immunity claim it may turn out to be otherwise if this case goes to adjour what we are saying here and it goes for the qualified immunity argument as well as the substantive summary judgment issues is basically assuming all facts and i would take issue with mr gerard saying it's not just what comes out of the pla plaintiff's version or the facts most favorable to the plaintiffs and what that shows is that for whatever reason despite the fact that the plan called for otherwise for some reason lieutenant jefferson decides he has to come up there and be a part of this and if you recall he says i had to take charge but i wasn't taking charge this is the kind of run issues lieutenant redish we see in swat gear gone and there was plenty of statements from the students that you know the students were terrorized by the people one student i believe said something to the context of bring this guy over here he and what we have is chief melendez assistant chief melendez says he told the students to put away the cell phones for the time being but said it was ok to hold yourself owns sergeant you  laza says remain off of your phones police officer about taste says the students were told to stay off their phones lieutenant redish says he told the students to turn off their cell phones put them down and alternatively turn off the phone and stay off the phone other officers don't remember and remember anything so when you look at the context of what these students were told whether it was an order whether it was a request what was going on one must look out was the order clearly communicated and when we're looking at that in the context of college students where there is evidence that this party was winding down things were orderly people were all they were doing was asking questions and becoming upset and then you have various discussion about what you should do with your cell phone just to go back to mr jefferson he makes it clear i was taking it out it went off i didn't want to disturb anything reading this in the light most favorable to mr jefferson he was following officer redish his instructions of turn it off this is the colloquy he says he was singled out for having his phone out that is the reason he says jefferson got reddish gave this is the colloquy a deposition question all right and when you had your phone out what were you doing with the phone answer i got a notification so my phone had went off i took it out to look at the notification and put the phone on silent that's when he saw me and then lieutenant redish comes to you and says put the phone away and mr jefferson is no he does not he says from across the room stand up and come over here a command for which a comply and then he's did you hear any orders before that the people were to be seated not to use their cell phones he says i did he and then attorney gerard asked him so why didn't you pulled your phone out on looked at the notification and this is important mr jefferson said wait a minute what was the order again so mr jefferson himself does not know what the order is because the order is not clear and these are all facts that need to get established at trial and mr jefferson further explains when he's asked why he took it out because my phone went off and i didn't want to further cause any disturbance and then there's a more back and forth and he says further if someone had called me it would have continued to ring so i thought it best to turn it off and then finishes by saying he's asked so are you saying you remove the cell from from your pants for the purpose of turning that off he says yes for no other purpose correct and then what happened redish ordered him over and then he says he goes over as instructed he's perfectly compliant so what the record shows is it's almost three versions actually all right we're up to that point can i jump you ahead to the no no don't don't apologize we jump ahead to the point that i think are several of us were asking about which has this conversation or quick interchange between jefferson and another person right and it was after that that he was arrested so what are the facts i mean did did mr gerard and i and the court have the facts right around that  exchange i believe is an indication that for mr mr jefferson that he first of all i don't believe there's anything in the record that shows he was told he was told and directed to go sit down he was not told to at one point the students were told in the beginning when tenet redish barges in sit the f down shut the f up but at this point things are much more calm mr jefferson is told to go sit down he's not told not to speak and at that point in time he has a brief and polite exchange he says he was using a normal voice under those circumstances did let me just i have a quick question about that and we'll of course give mr girard opportunity for there to argue if he needs it beyond his two minutes is a dispatch i understand the record to be it's disputed whether sorry but there are two officers in white shirts that's why i'm on melendez there is a dispute a factor as to whether they are present and if so where they establishment do i understand the record correctly on that issue what i understand is there is no dispute both of them were in the facility there is no dispute that both of them had multiple opportunities to observe and in fact participates there's one student that directly says officer chief assistant chief melendez used profanity at some point in time during the tasing we believe that office excuse me chief limone was not present for the tasing but for all other aspects it is in dispute as to precisely where there are but there but there is ample evidence they both had the white shirts to know any evidence that chief limone participated in the arrest at all or made the decision to arrest there's other then allowing things to go forward there's no direct evidence that he was part of the conversation to arrest mister jefferson thank you or your cou gross negligence in the so revision of subordinate but if it's both it's possible as a part that we have jurisdiction over his personal and non supervisory role  two both of them both melendez and limone there also is a lot of dispute of fact as to who was actually in charge on that evening and nobody seems to know or none of the men who bring this appeal have been sued individually they have personal liability and personal exposure to their assets and their plans for life in their family and all of that so it's very important that they are able to raise qualified immunity as to the false arrest piece even though they're going to have to sit for trial on the floor space because it takes a huge part of the exposure this personal exposure away from them and it's their claim and i think it's well made that this amounts to probable cause a firm decision but i am retained specially to represent the individuals so that they and they have been put on notice that there is no risk there's no coverage or indemnification for intentional acts depends on how the verdict comes out obviously who did what but just to just to reiterate what we're facing here there are many times where we're here we hear about an unfortunate tragedy a very overcrowded bar  in play a fire starts lot of lives are lost and people look after the fact and they say how could this happen how did you get two hundred fifty kids in a one hundred fifty person space all these eighteen nineteen twenty years old they're all under age how city of new haven how is this happening state of connecticut how is this happening and this is what we're fighting out there and so that was it was the right thing for the new haven police to assist these persons in going up to try to make this this inspection so that this bar owner could be written up and that's the only way it works you can get your liquor license suspended you can get fire marshal can shut you down and things like that so it's grossly overcrowded and it was the right thing to do when under these circumstances just using mr jefferson's actions only that's interfering that's the distraction that's the one the police are grossly outnumbered that's what judge to brownnose was talking about in  his decision in the two connecticut supreme court decisions and i think there's just one comment on the supervisors there's no dispute that they were they were not there at the time of this what the only time where there's an alleged constitutional violation and that's the arrest and the use of force and jordan jefferson use a profanity is not constitutional to mention use of a swat team is not constitutional to mention i've cited those cases and maybe that's a case for negligen supervision maybe they want to talk to the office of professional standards about how their officers are swearing their whatever those that's that's not a constitutional violation that a supervisor can now have personal liability for not stopping and otherwise can i ask one question yes judge that is have you argued with respect to supervisory liability have you argue pendent jurisdiction on our part that is to say we have jurisdiction not haven't seen i know that's what i just want to know whether it was in your brief thank you thank you both helpful arguments and i will reserve decision