judgment denied on the remaining on the remaining claims the indication and judge writer's opinion was that he found there were genuine issues of material fact and we do not believe your honor that there were genuine issues of material but if that's the basis for the determination what makes this an appeal the collateral or i'm sorry what makes this an which really actually is not in the record because it wasn't any testimony or affidavit or anything taken from the magistrate but if you look at the actual facts of the case there really is no dispute and the point of in his brief says there are no there's no dispute facts in fact i saw thought that the foundational difficulty here for judge schroeder which i think take shoes immediately to the questions judge duncan is out or stand the record in order to determine whether or not they offer a survey of probable cause to obtain these warrants it depends upon what version of the events of this particular day are believ what would what would a jury determine where the facts that happened that as i understand this is a finny and he determined that if you believe your client version of events he was surrounded by these folks and intimidated and that justified the warrant city guide then there would have been probable cause on the other hand a food if a jury is believed and believe the account made by the other individuals that day that it was just a calm meeting then there would not have been probable cause it seems like to me that's the quintessential factual issue that judgment the facts will be taken taken in the light most favorable to the plaintiff so we're willing to live with the point of spock's and say ok these are the facts and truthfully if you really did their record in the depositions the facts are really honestly undisputed the characterization of the facts is the only difference one person says around one person says band one person says scatter that sort of thing but there really is no issue of fact here the other said and there is probable cause that just i don't see how you get away from the basic factual dispute again not i understand your honor i understand your point  notwithstanding to judge the district court judge say to turn off facts that you would have to you're urging us that even if you take the two things the say that was in question even if you resolve close by the question is what a reasonable officer could have or would have assumed under those circumstances yes i think that's what you're saying that's not a fact question that's a question  as we understand that given all of that it simply does come down to a matter all to qualify that mean it in the objective officers reasonable perception and we believe that because probable cause exist or all of all and you know we believe that probable cause existed in this case a qualified immunity just for the officer in this case because in this case after this incident occurred the officer having been confronted in that and we believe as a matter of law that establishes probable cause and certainly supports all of our unity and public official immunity for officer while i've not seen a single case that went all the way to a jury trial that they use in describing it but there certainly is no speed took the depositions of every one of them the plaintiff and every one of his friends and which we absolutely agree those are facts and all th to the officer had a reasonable belief that probable cause existed for intimidation witness him we went from there yes that's where the case went what's the evidence that the threat well it was interesting that the point of in this case was to say we had to say something and the statute says basically any other major any any method of intimidation so it was the so what is the factual threat then since it was nonverbal no no contest about that switch in at least some of his friends been drinking all afternoon and they decide this is the time they're going to follow officers when he decides to leave to get away he sees him point met him talking about him and he leaves and they follow there's there's one here two three here and if you look at where they are and it's this triangle and it's a it's a pain so we can quibble with the word choice of whether they were fan they are or whether they were scattered there they were in the same location and you know he felt intimidated carlos alpharetta who is one of the furnace who testified at the criminal trial and in his deposition in our case obviously how that would be name basis were calm throughout the conversation did not raise their voices neither man displayed any threatening gesture while it also concedes that none of so extended minutes could be construed as a yes threatened i can only say that officer wow and i are i would agree with him if i were those women in four or five cows or point me in talking to me and i know that on the witness in a criminal trial that's coming up where he's ch i and they start going to me and then i leave the pool to avoid a confrontation and they follow me and they follow me a hundred yards to where i live and i get in the car and leave because i want to so you know get away and then i think well maybe maybe they weren't doing the maybe they weren't followed me and so i come back and they're still there and the truth of the matter is they were following him and they all say they were following him and there's no dispute about that we're follow him that these guys have been out here drink into this pool for four or five hours that they've followed him with i did confront him and him run photos like you know of please don't do this this is not a good idea i mean this is exactly what was going on and if you have to get  flavor of what was happening there to understand it is in the actual words and trying to describe it using different words to describe it is it's it's not it's not fair to wow him isn't i don't have this objectively reasonable perception that this is what's going on he believes that they are trying to intimidate him in that exactly what's would want to talk to him about was this chore why are you throw me under the bus why are you  picking on me and there was this personal relationship actually wow it was not really involved and he knew a couple of these people but he didn't know them well they really believe his girlfriend now his wife and and i think that it's clear discussion that he had with wow that why are you thor i'm going to bust why are you talking to me what are we doing here and while said to him you know you need to stop breaking the law and that's what that conversation was about so he did discuss it with him and so i think you know while swift would like him to say look we're friends don't worry about what you do it's fine you know i know you from out here you don't have to worry about you know the traffic laws in the d to be all and the officer saw a different way and he didn't appreciate that and i think that's certainly a factor in this but when question every one of these people i asked them what did you think that was what was going on did you think this was because of the relationship no no no no  and two judges look at it and it goes all the way to a jury trial if it passed two versions to dismiss at the close of the state's evidence in the close of all this and if that isn't probable cause  you very much extra honors may please the court my name is bob x ray and i'm here on behalf of plaintiff in this case dr lance sweat yours i'd like to dive right into exactly the issue that you've raised and i think it comes in two parts of the first is whether or not the question of qualified immunity is always a legal one and if not what what is the appeal ability of the water based on  question of course is that the qualified immunity issue is over wrapped up in probable cause and whether or not probable cause existed do you agree that the facts are not in  think that's the case that we have jurisdiction here this appeal in my view in my view no this court has held and and the district court noted they qualified immunity is a it can be a factual issue at step one and if the to you this way mr wilde told there is testimony and in the record about what mr wilde told the magistrate and what mr wilde failed to tell the magistrate i'll just point you to join appendix five eighty five to five eighty seven for some of the omissions but the clearest account of what mr wilde was saying in the aftermath of his conversation with dr sway was reported that mr wilde contends and told the magistrate in and in his supervisor that several men unknown to him followed him from the pool fanned out surrounded him cut off surround cut off means of escape nobody else talks about that because the other side of the facts are that every other witness in this case including d testified twice once in the criminal trial once here in this case in their depositions that only one person left the pool after wild left the pool when that was the others followed dr sway without knowing what was going on and there's clear evidence that that matter but in a way it does because about a police officer the one who phoned you let me explain exactly why because the statutes involved in north carolina that obstruction of justice statutes are all pale towards the view of the person who is accused of committing the intimidation not the person who's intimidated intimidated so from the perspective of these people you know you have to look objective way of what they were thinking and only two of them knew what the conversation was about the others did but one of them one of these other men sat on a curb at fifty feet away another one sat on a patch of grass about seventy five feet away and then two of them different three of them didn't know what this was about one of them wasn't even happy the police also know that i don't know what the police officer actually did that's my point though is that they factor into whose presence if they're seventy five has to be resolved first before you can reach the legal question so you can't give us a you know a trial example i think to prove that right but you did the follow on the judge great was giving you what are the to get to the foundational question of whether or not there was probable cause are other facts in dispute that have to be decided before that determination can i think so because the the opposite narrative that every other witness tells does not give rise to probable cause probable cause could only plausibly exist under the events as portrayed by mr wilde and i don't know that the court necessarily concludes that that his version of the events would be probable cause either of the statutes involved but i think that it's important i just wanted to ask a question of north carolina law you were saying that under north carolina law what is determinative is is the reason the point of view of the reasonable accused the statutes are written but more importantly north carolina courts have interpreted the statutes to be written as prohibiting the conduct not the result so put it that way maybe it makes sense it is not material whether rather it is not even why there are a real reasonable person would have you the situation is threatening but whether the conduct of jack intentionality that's in the statute and what they what they read that to mean is that the conda not only has to be threatening coercive but it also has to be intended to be so it's a little different than in asking the question whether a reasoned person would be threatened i think that might be some evidence of an intent but the question is or these people are actually now  determine whether or not there were sufficient facts that to to that while presented to the magistrate that a jury could find that while intentionally or recklessly mischaracterized or good question really i think the focus of the terms of questioning you about that you started off that basically your case is about you think that the office a lot about the circumstances of these hyperbole let's  in order to effectuate the war but let's go beyond that if i were you i could probably concede this but if it happened just like your clients sa and just like the other people who were involved in tended their intentions it is a matter of law that was sufficient for a reason police officer believed to be threatened as they did then don't you lose if that's when ok i think i can some say forget about the lying to the magistrate that if it happened just like your client said as a matter of law could that  mean that is that there would be enough to make a reasoned police officer to feel that he was threat client and all the other witnesses to the events their story was different than what it is and instead it was they took off out of the pool when they saw officer while surrounded his car taunting him tail screaming drop the case or something to that effect then we would we would be in a lot of trouble because probable cause defeats at would lose on that amount of law tell me give me your best arguments why we could not because that's really what you would talk about if the facts are just like your client said right what would prevent us from finding as a matter of law a reason police officer would have under those facts that you give us could not have believed that he had probable cause to arrest for intimidation and threatening a witness ok that's a question there reason what there are several but the first reason is for felony cases pending and you're coming to me in a calm fashion sane what's up with this why don't you stop bringing these false charges against me and throw me under the bus  can't do better so of just being confronted that's not enough is it of course not what does because the first amendment will bring about that every time and it should because you have a right to express your grievances to the government and i don't think that there anything more central to the first amendment than that and i don't think that there's a better illustration of that of that constitutional exercise then asking a police officer directly calmly and  like fashion whether or not he is engaging in a proper exercise of his authority that's what happened here and the first amendment always will step in and so there's a there is a very important question i hope will never reach and that is is there is there a cause of action or retaliatory or arrest even if there is probable cause i thought  fundamentally it's sort of at the threshold level your position was to test for intimidation he's not dependent on the subject issue and there's a there's a really useful case in that regard i will find it if i can but it goes through i think eleven different criminal charges based on eleven different conversations and interactions with a witness and the court found north carolina court found only one of them is an actionable charge because of that reason the remainder although the person the putative victim in the case the complaining witness in the case felt them believed that she was being intimidated that she was being coerced into dropping the charges the court look at what the defendant said and did and that was that was their focus in on that basis the court ruled against the state in ten out of the eleven cases it cited in my brief and i just had it on the top of my mind the top of your head at the tip of your but i didn't want to know that you know putting yourself as you did in the officers position and wondering if this was not i would put myself i thought that's what our president required us to do if we look at  five feet i'm afraid of opposing counsel in so many ways but i don't think he's going to hurt me and he's he's about ten feet away and i know he's not going to hurt you and the people in in the spots beyond the bar or about where the other other men were in this case sitting on curbs and grasses blood so you wouldn't you agree with joe klein although calm was confrontational  are you going to stop bringing these false charges against me and thrown me under the bus in the sand if you're a liar and you're unprofessional that's got to be confrontation if you whispered matter but but ultimately you look at look at the testimony it we've cited it and i can give you references here but the the collective testimony of the witnesses is is very similar they all testify that he's about six feet away five to six feet away that neither one of them looks agitated until after a while that the end appears to be agitated and says i'm done i'm done talking to you and and d ok and goes away and that's the end of it and again i can't emphasize enough how important the first amendment is in protecting what happened there because if it doesn't where do you go and what do you do i mean i think i think that that is the reason for it or that protection and i think it was it was a vivid example of exactly with that and then protect right or wrong disagree with what swift says he did the perception of the manner in which he did it when you've been drinking at the pool all day and you follow god hundred yards when you say i want to talk to mano a mano and you've got four more monitors coming behind presented facts so different from liles version that a genuine disputed material fact exists whether while deliberately or recklessly misstated the facts to the magistrate when applying for swix arrest one ation within the meaning of the statute i think they did because they can do it by any any means and i think that you know it is certainly not it clearly established right there you can can  intimidating you know stall out from the pool is not the way to do it because i've already known you know that appears to be criminal activity in the mon of the officer and that's where he goes to the magistrate and you do not have a clearly established right to be intimidating to an officer and i think that officer has the right then to go in and he could have walked out several he could have arrested him on the spot but he took the time to go to his supervisor and discuss it he went to the quite including swithin self and that he knew they were also friends of his girlfriend while while the media these details is not relevant leaving the impression that he was confronted by strangers were they were you know confronting him in this fashion and i think once he goes through these steps that he took the time to go through that really under the evans case that really breaks the chain he goes on to get the prosecutor gets i don't think so but i don't think it's relevant i don't think it matters i don't think it's a material five i think he he was being intimidated as a witness and and that's what he did and again i think that the fact is just man took the time to go to get a warrant and go do all this when he could have arrested him he's now been sued for these three or four claims now where if i were him next time how to arrest the guy i would go get a warrant if this is what he's going to get