restraint with respect to the county yes judge bear however that verdict does not have any sort of preclude effect here for three reasons i think there have been several reasons articulated by the parties as to how to treat the jury verdict if you look at this as the apple these recently announced that the should be treated under the law the case doctor in the law the case doctrine does not prohibit a palette court from reviewing a trial court's legal errors and for that i refer the court to our response to the counties  one that completed the whole case so the jury didn't hear anything with respect to mo now it was just limited to the question of probable cause well but the jury had to be if you work alleging an unlawful arrest if the jury entered a verdict been granted summary judgment by virtue of the qualified immunity decision on review with or anyone else who was arresting other than that be the carpenter there was a second deputy who was a litigant in the case but she had been dropped from the case so far if the county was liable because of the actions of its agent that the carpenter from fulfilling a practice or policy of the county excuse the actions of the individual officer no to clarify judge bad the jury never heard anything with respect to manelli was limited to probable cause however the jury's instruction that the district court gave to the jury suffer from the same error of legal reasoning that we are trying to seek review of here and when the error is from one of law where the error here pertains to the elements of loitering the district or forgot in fact explicitly refused to consider  element of loitering which we submit is clearly established if there is one of law under this court's decision and by which we cite again in a response to the counties or rather the apple east twenty j letter under several other precedents where not obligated to preserve the error by objecting to the jury instruction and seeking review of it and were also the error is maintained despite the jury's verdict the ability to review the error is meant to find an odd situation because the summary judgment that gave qualified immunity to the officer related to the officer any good because the officer still had to go to trial on something else right and then so you still got to go to trial and you lost and so then you're going back that you're not appealing where you lost a trial but then you're summary judgment and contained within the verdict that you lost it's clearly a finding a probable cause but it was a finding of probable cause based on bad law just callahan and that's the problem here we did in this area as to what delaying or lingering means that is correct judge kelly how and wouldn't that affect the clearly established ploy of qualified immunity no your honor first under several cases decided by this by noon has for city of san diego which we sat in our opening brief the mere presence cannot be enough to constitute loitering and that's a point of law that the district court missed here it's it explicitly rejected what it called a temporal fix an twenty four if you one on if we reverse the summary judgment then you would go to trial on what you've already been to trial right against  carpenter yes just callahan but it would be with a current correct instruction of law here with the jury instruction just get a redo on a trial that you already have is what you're saying with the correct legal instructions and also it isn't against the loitering it seems to suggest to the jury and the district courts and i quote i believe in and to some extent and you'll hear it from the lawyers that the loitering aspect will and i wouldn't say will could depend depending upon how you view the evidence on that disputed conversation and by the disputed conversation the court's referring to the phrases just here or just hanging out that doesn't convey any sense of temporality with respect to loitering it only conveys that someone has a nameless purpose and i don't think my colleagues on the other side really temporality is a component of loiter to see that someone is remaining or lingering or dylan how long do you have to linger five minutes just kelly i think that the fifteen it's not something that's that can be set as a bright line rule i think depends on context usually if it's just by observation alone it should be minutes if you look at people versus trenton for example you see that the arresting officers look at  the defendants in that case for a period of nine to eleven minutes but it could also be seconds if you have some other basis for knowing that they've been delaying or lingering the district court cited a case called people versus pulliam in which the officers observed the defendants for only a few seconds and they went up to the defendant and she said they suspected her of ordering for prosecution and she said i haven't made any money tonight which could of course convey to the officers that the you know she'd been there for some period of time that she had delayed or lingered here all deputy carpenter had was a fleeting few seconds of observation and mr her sickness of just here or just hanging out and  knew the drug dealer he knew that he was subject to the drug and you know the injunction he knew a lot more than then and he goes not just one you know i'm not doing anything really i'm just hanging out here i'm if you leave it to just presence and purpose alone if if that is the formulation of loitering and if you exclude an objective component of time then i don't think you would have been arrested for loitering you don't look like a g out in this area thank you judge callahan your i don't think you don't have the officer i hope the court doesn't think i'm delaying or lingering with this argument but what you what you you have the danger of an officer being able to just make a subjective call as to whether that person is there if you don't have that ject of component of time if you don't have the observation of delaying or lingering then you have the problem of what this court warned of a new nie as a case that any reasonable officer would have known of since it washing before you can approach a person for lawyer and just kelly if you're looking for a case that says x number of minutes again there will be no case that's a bright line rule but if what what is a reasonable offer to do  guidance would you give a reasonable police officer to helping in this situation a reasonable officer would have known from the case on the guidance that will be given is that mere presence alone is not going to be enough and that you have to have some basis for knowing objective fully that that person has been delaying or lingering that it that information can open when you want to rethink the balance of your yes and i thank you based upon qualified immunity and the second prong of the qualified immunity and alice's regarding while there a law was clearly established that a reasonable officer could have believed there was probable cause for the rest however probable cause existed to arrest played off first of all the m s j order was on the second prong of the qualified immunity and now with this regarding whether the law was clearly established such that a reasonable officer could have believed his conduct was reasonable the district court orner order physically limited the findings to that second prong the district court specifically stated that it was not going to reach the issue of whether there was actually probable cause for the arrest which is why he also then set a trial to determine that issue the district court said regardless of whether or not there was probable cause there the deputies title two qualified immunity under the second prong so it's a different legal issue so let me just i don't want to make your argument for you but when mr kim was asked what cases out there that says how long an officer has to wait on the temporality he said well there isn't really anything out there so was that the basis for why it's not clearly established that it needs to be at least a minute or there's cases out there that say if you go at thirty seconds even though it's a gang banger that you know and it's in that area and there is the injunction and all of their known to be a drug dealer and all about the sort of thing is is that was that what the court was talking about that it wasn't clearly established yes substantively the court was clearly proper and this ruling finding that the law was not clearly established as conceded by plaintiffs counsel in the brief indicating that there's been no definition of linger and delay under health and safety code one one five three zero the law is not clearly established in this regard the plaintiff actually admitted and t requirement that's alleged to be in the statute by stating he was hanging around what your reason officer could believe that was lingering and also under caswell mere presence is sufficient when was hoover going member that he was found by his car he asked what he was doing there it's undisputed the plaintiffs that i'm just hanging out debbie carpenter knew of his past drug convictions and he saw the loose panel in the car which is indicative in his experience of drug activity so clearly the law while clearly the law was not clearly established that a reasonable officer could not have believed that there was enough the standard is every reasonable officer in the shoes of debbie carpenter would have known that there was no probable cause and based on the lack of clay's case law he was entitled to qualified immunity and that ruling was subsequently proper innit mission even if this court were to find that the court somehow erred which defendants strongly dispute that does not instruction given to the jury if there was only one issue submitted to the jury and that was as c r eleven specifically whether deputy carpenter had probable cause to arrest and they found that he dead that judgment remains intact there's no objection to the jury instructions there's no attack  write with intent for drug activity so what was the definition of wagering that was given to the jury that they didn't object to but they're saying was wrong and they therefore can that attack the  definition at s c r eleven the jury was specifically told that they were to determine whether and they were instructed that loring was delaying erling during and they were to make that determination there was no limitations set on the trial in any way based on the the judge's prior ruling as to whether the as to the second section one sixty six for a four and his determination that there was probable cause to arrest plaintiff hertha on may thirty first two thousand and eight the statute makes it a crime to violate a court order such as an injunction the anti ga injunction discussed in this case perhaps loitering delaying or lingering and any public place arent any public view or any place accessible to the public for the purpose of engaging in graffiti drug related activity or other illegal purpose and then it goes on to say is essentially you must determine if deputy whether plaintiff showed deputy heard our did not have probable cause to believe that perth was loitering for the purpose of engaging in drug related activity hanging out at the excessive force trial and in later proceedings plaintiffs sad i was here to see a friend about a jet ski and so the plaintiff's attorney said in my point of view the main issue is the jury's determination as to what the plaintiffs with regard when asked what he was doing in the area of that getting injunction so that was the argument made the jury found it wasn't really how long he was there it what was his purpose in being there that was one well that was one of the arguments that the players counsel was making but i wanted to well to stress for the court that in united states versus being bridge someone for six f three nine four three the court specifically stated that the law of the case doctrine does applies differently when it's the court's only ruling because it has discretion to modify its own decisions plaintiff claims on appeal that he was somehow prejudiced by an earlier ruling in the trial court he has to raise that before the trial court and ask the trial court to reconsider its ruling otherwise that issue is wait here there's been no the plaintiff has cited to know anything in the record showing that he ever requested additional findings as to whether there  attacked in any way based on any legal error or instructional error and it's a separate legal issue the the district court specifically said i'm not ruling on probable cause so there's no way that the earlier ruling as to the second understanding of his argument and his argument a little differently well there are you can appeal you cannot appeal this is not a case where summary judgment was denied i think on the summary judgment and they didn't have to object to temporale that because there was an error in the jury how the jury was instructed that so it therefore is not precludes have on the summary judgment your honor this is not citing are when some are just agreeing with him i'm just trying to i'm not doing one or the other i'm just trying to understand his argument when i'm hearing you frame it a little bit differently than i heard him frame and i believe his argument is that an earlier in the cases he's relying on is when summary judgment is denied on a legal issue the plaintiff can later appeal it this is not the case we have two separate legal issues even if you want on the first one his fourth amendment claim is entirely barred by the second one there are two different the two prongs there are two different issues the first ruling was not whether there was probably because of that when the plane a failed to object and failed to raise on appeal and challenge the jury's finding that there was in fact probable cause to arrest plaintiff his whole argument is is arrest plaintiff i wanted to stress for the panel that summary judgment can be affirmed on any ground set forth in the record and i cited as case versus mayo and it's a similar situation where the seventh circuit was considering an inmate's nine hundred eighty three claim and the plaintiff argued summary judgment should not have been granted in favor of the individual individual defendants on his claim for failure to provide adequate medical care following attack by officers and however a jury subsequently determined that the officers did not use excessive force and that they attack did not take place on appeal the seven circuit stated intuitively knew the verdict trumped the plaintiff's claims but stated just what principle of law applies here is an interesting question however the seventh circuit how that because its review of summary judgment was the noble and subsequent to the jury verdict and because it could have fear affirm on any ground of appearing in the record the verde the second jury verdict trumps the claims and the judgment favor of the tenants had to be affirmed and reaching its decision the seven circuit relied upon the supreme court's decision in arizona versus california where the supreme court stated that parties must be precluded from contesting matters that they had a full and fair opportunity to litigate a fundamental precept of common logic ation is that an issue once determined by a competent court is conclusive the plaintiff is not allowed to relive a gate that the plaintiff here had a full and fair opportunity to litigate whether there was in fact probable cause to arrest plain of the instructions without objection were submitted to the jury the jury clearly made a specific judgment is subject to be overturned his claims are barred again even if i submit there's clearly no error in the summary judgment ruling because i think it's almost conceded that the law was not clear established on the substantive grounds second his weight his failure to appeal the judgment or show any air or a prejudice from that subs subsequent trial based on the earlier judgment ruling has waived all of his claims thank you you thank  three points your honor so first with respect to preservation just callahan your articulation of our argument is exactly right the verdict does not have precludes of effect on this court's review of the district court's grant of summary judgment you can look at it from three different ways if you look at it from the law of the case doctrine as the police recently argued in their twenty j letter h k system so long as we're trading seven circuit cases cases and says the law the case doctrine doesn't prevent appellate court from correcting the trial court's errors of law were not with standing a jury verdict dealt with a factual dispute and said basically held as your determination overrides a factual dispute if you look at this is a question of issue preclusion bravo fernandez which we cite in reply brief says that for close of affect only takes place when you have the confidence of an appeal and this was the first opportunity that we had to appeal and therefore there was no preservation or with respect if you look at just what we did your honor and you didn't do it but there was no need to challenge the don't understand where you're coming from on the fact you did so we'll settle that a reasonable officer would know that somebody who has remained in place and has no apparent reason says you just hang out how that in which the courts have said mere presence is not going to be enough we have a different issue the lawyer in that you have given us and it doesn't have a temple element but if you look at loitering as it was treated under the california case law and under this court's evaluation but then just hanging out isn't a violation of the statute you have to show that you're hanging out to do bad stuff right and so he just said he was hanging out and that would have been his defense not that i was hanging out decision a newness the newness this isn't actually dealt with a learning ordinance which the district court tried to interpret as lording equals hanging out and the court there found that construction problematic because all that hanging out really conveys is that you're there without a purpose violation but just go have the via the error of law here was that the district court essentially told the jury all you need to focus on is the purpose is the lack of purpose and use that as a justification for probable cause that doesn't consider the temporal elements at all and in fact if you look at as you are for twenty four their support says i'm going to reject your temporal fix ok we i think we understand your argument i want to thank both of you for your argument i like to particularly acknowledge that we appreciate pro bono counsel it's important to the court function and it's not that we favor one over the other but when people obviously give their time we that's an important aspect so that these cases can be argued and articulated before the court so thank you both for your helpful argument and your efforts and this matter