please the court counsel money is jane bishop and i represent the defendant stephanie branch i'm requesting a five minute rebuttal time on the issue before the court today is whether branch is entitled to qualified immunity on e the reason we're here today is we believe the lower court failed to apply the proper qualified immunity analysis when it denied branch's summary judgment qualified immunity defense as to whether branch have probable cause to arrest mr adelman for criminal did because if she did not have authority to tell him to leave then his failure to leave is not probable cause for trespass if i'm just walking down the street in new orleans on the sidewalk i'm not trespassing even though i don't live in new orleans ok somebody with authority has to tell me to leave and then i have to refuse right yes your honor we a girl if she lacked the authority she didn't have probable cause and a reasonable officer would not think that she had probable cause your honor we believe she specifically had that authority to ask him to leave she was an agent of dark area rapid transit under section four hundred and fifty two of the texas transportation code dark can establish rules and regulations regarding the use of dark controlled property and it did and that included the photography memo which that's correct so when her authority again regardless of whether in general you have an authority to photograph as a private citizen in general what the this was were tom outdoor authority and that memo takes away her authority to do what she did whether she knows about it or not well how does she have authority your honor i would disagree with you because it wasn't clearly established even with the authority a police officer or any government agent does not lose their qualified immunity defense just because they violated some administrative statu mystery sidestepping what i'm saying she has to have the authority to tell them to leave you've agreed that's not unfetter i'm saying that was restricted by door so she lacked the authority well she believed that he was interfering under that same policy that same policy doesn't give him unfettered right to take photos he cannot be interfering with the police activities where the video comes in and also if speeded facts at best for you all disputed facts on whether he was interfering that's correct i would just be to facts about that but a reasonable police officer would know at that time and she didn't know because she was out sick that there was a photography policy there and because it wasn't clearly established at the time she has to fall back on the dark policy which is if you're not using the transportation services you can be asked to leave by his own admission  policies she ought to know about or not to try to reason with her maybe she didn't know about it that's fine but a reasonable officer should know what the policies are they give them authority and she lacked that authority now she was interfering with the c p r on on a sick person absolutely but that is best for you all as a disputed fact issue you'd agree with that well we would but we still believe the you can't rely on the policy you have to rely on what a reasonable police officer transit authority in the three states that cover this district not all of them are going to have a policy of photography policy especially back in two thousand and sixteen when this occurred it was a clearly established no reasonable police officer would yes a reasonable police officer should know their authority under their particular department and she lacked that authority maybe in new orleans you do have that authority maybe in jackson mississippi you have that authority  trained after the fact so she was unaware of the photography policy you're not provided a copy she was not she was out sick on a worker's comp injury she had been back one month when this incident occurred on maternity leave you know she had  complications she had broken her leg and had complications due to that but again we still believe that under the supreme court's analysis of qualified immunity it was it clearly established that that you had a right to photograph police activity we still believe she had the authority to had to remove him under the specific policies and procedures of dart which says if you're not catching the train if you're not taking the bus we can ask you to leave something for lowering and if it wasn't clearly established that she could take photos a reasonable officer under those same circumstances we argue would have probable cause to arrest mr adelman because by his own admission even in his complaint he admits he was asked to leave nine times he refused to leave and under that authority if it wasn't clearly established that he could take a photograph at that time she has to be able to rely on the existing law at the time they're sick of texas state case griffin v state came out in two thousand and seven that says dart police officers have the authority to remove persons from dark property if they are not using transportation services again mr adelman has admitted in his complaint that transportation code anthony was just a city park there were no there were no regulations regarding people loitering or standing around in a city park you're specifically allowed to do that in a city park andar you cannot you can't stand when you're talking about authority if i give you a forty to walk out that door right now that's a very specific to right now you that door that doesn't give council opposite that authority or anybody else in the room if you need authority to walk out the door so i just i think we have to agree to disagree as to how somebody gets authority that's wrong again i know you understand that but it specifically comes from the texas transportation code because this property especially  authority to have rules and it hasn't and that includes the photography memo whether she knows about it or not it's like there's a bunch of rules out in the world that we're all bound by that we may or may not know about again that the qualified immunity analysis right so if another police officer who was unaware of the photography policy which one at the scene was the record shows then that person would probably and that that officers never said a word because presumably he believed that she had a right to ask him to leave the property if he was not using transportation services so i would ask you not to consider an anecdotal situation where one officer may have been aware of the policy the question is would you any reasonable officer be aware of that policy and since it was a clearly established argument of course is is the head of your king adding three different signatures for a petition he was on a grocery store parking lot on the edge of a grocery store parking lot the manager came out and asked him to leave he said i have a st amendment right to be here this is public property i have a right to be here  officers to this manager called the officers to come out the officers arrested the court said the officers were going to look at the exact scuse me the officers held that the officers in good faith had probable cause to cause exists when the totality of facts and circumstances within a police officer's knowledge at the moment of a rest are sufficient for reason one person to conclude the suspect had committed or was committing an offer and it's another fish circuit case have two thousand opinion versus bear county involving a man with a service dog and a court house officers arrested him for criminal trespass not believing he was the dog was actually assume all this authority and did what found by an investigation by dark not your opposing counsel here but dart to have lied in that is some indication but again that goes to her subjective intent where you've been relying on the how all argument well it seems like  subjective intent was to lie well know her well i don't think we're relying on her subjective intent you know as you know in harlow st this is fitzgerald this is a this is it going to be an objective standard of qualified immunity is an objective standard so we we  can't consider her subjective or you've repeatedly said she didn't know about this policy obvious she knew about the dog repulse you would well a different argument well we still believe whether or not she knew about the policy because it wasn't clearly established it shouldn't we don't believe it should be considered for purposes of qualified immunity what would a reasonable police officer in these three states believe if what would a reasonable officer for dart believe about their authority under dart when dart has said you don't have  that to me is the question it is the question but i think you can't just consider dart i think you have to consider all transit authority because they have the special they have a special rules that allow them to remove people who aren't using transportation service i mean dart to be fair is a little bit different than the typical like new york subway react you actually go through a gate and get in there and all that i mean dart is just sitting out there on the open walking down the street right next to where the trains come up and there is absolutely no barriers whatsoever that's so even knowing what start properties a little and there are some stations that are more like a traditional station but none of them have gates that you go through that is to just show believe she had the authority to ask him to leave and we believe that that was reasonable under the situation so we're asking you to well versed in remand this case  please the court tyler baxley i'm here representing the apple e and the plaintiff in the underlying action avi ableman the th amendment protect citizens from arrest without probable cause and a police officer cannot circumvent that production by giving an unlawful instruction to leave and then arresting a person for violating that unlawful instruction what about this notion this talk and though wasn't known by most and therefore she had authority under the general principle that you should be on guard property whatever that is without waiting for a train or getting off a train so so three responses to that argument your honor st and primarily it is undisputed that dark property is in fact public property just like the property in anthony versus state and one record site example of that is at page one thousand and forty two where the corporate representative for dart testified quote dark property is public property and and there is testimony in the case and as the court has pointed out that the photography policy using numerated authorized exception to the policy so the very existence of that photography policy takes mr edelman out and any other person out of that quote unquote unauthorized use provision of the code of conduct right and you don't have to pay to get onto the dart property it's only to get on the train and there and again you're not physically paying like say in a new york subway station you have to go through the gate long before you're ever at the train and that's when you have the ticket or whatever you go through the gate and you're not even close to the train at that point that as alice you're standing there on you know accurate street in the trains right there if you don't get on it nobody's going to arrest you have for having failed to pay correct that is absolutely correct with respect to rosa parks plaza where mr adelman was arrested i thought i would want to speak on behalf of dart as to whether that's true of every one of the stations but at most of them and  certainly the one issue here that is correct that i've never seen a dark station that you had to pay to get into the station nor have i when you're on the train you should have paid but it's something of an honor system unless and until an officer actually accosts you right that's my understanding and the final issue i want to point out on this knowledge of the photography policy is that the standard as the court pointed out and as counsel pointed out it is an objective one and that's straight out of andersen versus would still be a hamper on their authority and therefore it would still be unreasonable for them to think and probable cause in this circumstance i think it probably would and here's why because in any case including this case then the municipality darrent can get up and say well we have a policy you can't bring a modelled claim against us we wash our hands of it blame the individual officer and then the individual officer says wait a nd i don't know about the policy i have qualified immunity and suddenly every plaintiff is then stuck between a rock and a hard place of a  municipality washing their hands under monella because they have a clean policy that's not unconstitutional and then the individual officer raising the qualified immunity defense and you could sort of use that to circumvent ever holding anybody accountable for violating constitutional rights  and i do want to raise one very important point on this knowledge of the photography policy also whether or not the officer branch knew about the photography policy is a disputed issue of facts that has yet to be resolved and under the fence circuits case law the defendant in an interlocutory appeal like this one is required to concede the best version of the facts to the plaintiff and argue only issues of law and just to give some record cites for that indicate that dispute you have page nine  and sixteen where the chief said that he posted the policy on the bulletin board where all the officers eat as well as in a glass case outside of his office and two separate places and also made it available on some sort of electronic drive that i believe the officers had access to that example officer gretton krag who was one of the other officers at the scene that it's a regular practice for the officers to look at them to see things up on a bulletin board in what's called the chief's corner where regular announcements are posted that comes from page four  representative of dart and the police chief saying i distributed it i put it up where i usually put it up and then you have an officer saying well i didn't see it i believe that creates a least an issue that a reasonable juror could conclude it's otherwise there and then the question is would a reasonable  i agree and i'm only pointing this out to the extent that the court is crediting this this notion that her lack of knowledge subjective knowledge is somehow relevant to the inquiry if as i agree the court were to find that you don't even look at that you look only at the objective officer reasonable obvious or wouldn't know about it and she did then it wouldn't matter if you agreed would know about it and she didn't it doesn't matter if it's an objective standard i agree and so i think that that's what makes that testimony by the chief particularly compelling and a law student here when he said he followed his standard policy of putting it up on the board putting it up with a lunch in two separate places and putting it up on a drive and he's comfortable that the policy got out i think the only conclusion that flows from that is a reasonable officer should have known about the policy and should have known that the policy cabined her authority and against that backdrop i think that that distinguishes all of the cases that counsel cited both here at argument as well as in the briefing every single one of those cases follows the same sort of fact pattern where a rd party owner of property whether it's a shopping mall a grocery store or a bar has given an instruction to a person to leave that property that instruction was not followed and then the rd party owner calls the police or notifies a nearby off duty officer and says will you please arrest this person for trespassing on our property in those cases that the th circuit for example in the bods in case said yes it is reasonable for an officer to believe he has probable cause to make an arrest because a rd party owner has common ask the police officer and told the police officer that i asked this person to leave my property and bonds in the court says it wouldn't be fair for a police officer to be held to standards of doing research on where public property starts and private property ends on the meats and bounds of property while out on the job and therefore found qualified immunity there what is a clearly distinguishing factor here is that it is the very same person giving the instruction to leave the property and then making the arrest for the failure to follow that instruction and that is why as judge james you pointed out during kansas are going at the critical question here is whether officer brandt was authorized to make that instruction at the outset if she was not and that puts us firmly within the anthony versus state case where the police officer ordered mr anthony out of the park and then arrested him for criminal trespass and the court said that because the arresting officer lacked authority to exclude a person from the park the evidence is legally insufficient to support the effective consent of criminal trespass because of that we are not in bod's and we're not in the drag case that was cited we are in a different case completely that actually is more analogous to the turner case that council my property and my house and you won't and i call the police and then they arrest you that's the other cases right and that's understandable that a police officer is not being expected to referee dispute between neighbors or where a property line ends that would be an unreasonable expectation of a police officer versus it is quite reasonable to expect a police officer to follow the policy cabin in their authority to order people off of public property which is the  anthony case as well as what we have here and i would note also that the penal code section thirty five specifically anticipates of acquirers that the person making the instruction to leave had authority to make that instruction and so if the person didn't have the authority then there would not be probable cause to find that enough and occurred under the penal code statute now switching gears a little bit i'd like to address the issue of whether turnover says driver  applies to provide some sort of additional clearly established protection outside of the photography policy council's argument was that because the right to photograph was not clearly established under turner vs driver at the time of the arrest that this th a right for some reason also was not clearly established that but turner actually answered that question inside of the turner cases self the turner court allowed a th amendment claim on lack of probable cause to go forward at the motion to dismiss implicitly found that the mere fact that the right to photograph was not clearly established at the time of the turner decision as well as at the time of mr edelman's arrest does not mean that a person arrested for recording police lacks a remedy under the  because in turn or the court or the police officers arrested a person for recording police and then charged him with the offense of failure to id and the turner court said well you can't be held liable for failure to id if the arrest was improper in  when he did not leave the property and to say that you need a clearly established underlying right as such as the st amendment in order to make an arrest without probable cause improper under the th amendment simply has no basis in the law take for example  similar to the hypothetical you gave earlier judge james a person an officer sees his or her neighbor who he's currently feuding with approached our property and walk on the property suddenly to says i don't like this guy i'm going to order him off the property and then when he refuses i'm going to arrest him there's not a constitutional protection necessarily so because you're feuding neighbor you have some heightened clearly established protection you simply did not have probable cause in the st instance or authority in the st instance to order that person off of the property and with with somebody and tells them to leave dark property because they don't like the person who's coming on property or they don't like the color of the t shirt he's wearing or pick any hypothetical just because it's not based on something really established right like the right photograph that doesn't mean that the arrest had probable cause that it's completely separate inquiries and the two should not be conflated so i want to come back to this issue that the standard we're looking at is whether a reasonable officer would have made the arrest all of the evidence in the record here or there was submitted a summary judgment in the judge toler considered in making her decision establishes at least a fact to see less of the reasonableness of the conduct just a few examples you have a believe that he was committing a crime or had committed a crime or was about to engage in committing a crime therefore the arrest of a domain for criminal trespass was not based on sufficient probable cause that's a finding that was made using the reasonable person standard that is in the record and that judge schiller considered in finding at least a fact issue and that shows the reasonableness or lack of reasonableness of the arrest here as well the turn of affairs report also undermines this notion that a reasonable officer would have thought  somehow interfering with with the medical scene it was getting too close to the video shows that clearly to any objective person looking at it including the court if you were to watch it you would be able to see that i think and then the internal affairs report specifically says he was here exactly he was never viewed within ten feet the other officers at the scene you can pick up a comment saying they're wondering why she's approaching him they don't view him as a threat they don't view him as interfering the dallas fire rescue paramedics represented a provided a statement to the internal affairs investigation saying our officers never viewed him or our no i think it's undisputed that she did not and said our officers didn't  is looking at here is whether she had authority to make that instruction in the st place and i would submit that all of the evidence both the photography policy the turnovers as driver analysis at the anthony versus state analysis and the penal code language itself makes clear that she doesn't and i was also want to lastly address this point that there is a dallas court of appeals case called griffin versus state that counsel referred to as creating some sort of different standard with respect  that tases an unpublished disposition that does not is it's procedural in nature and does not address the substantive issues in this case the specific holding of the court there was quote appellant does not challenge the legal or factual sufficiency of the evidence to support his conviction close quote and they went on to to find that the appellate didn't properly raise a constitutional challenge for them to even consider the issues that are being discussed here and so to claim that some published authority created some sort of different standard   is a best for us to remain and and let her kind of scour the record or for us to do that spade work as a court of appeal i would submit she probably consider that and certainly and wouldn't make that decision without doing so but i suppose i would i would advocate for her to get the st chance as a district court if the court believes that there are some additional findings of fact or conclusions that needed to be made at the lower court to support that it's probably better to let judge scholer in the district court have the ability to go through the record and do that i again i i believe she probably did or wouldn't render the decision that she did but if there's some additional information that should have been in the opinion i would suggest that you allow us to either scour the record ourselves and determine what the fact issues are or to remain and it to the district court in the st instance of course if we conclude that as a matter of law she lacked authority and therefore could not have reasonably had thought she had probable cause then i guess there isn't anything to remain on that the new jury man for a trial i agree if that's a that's a legal issue that obviously this court has the prerogative to define and that would obviate and indeed to go further in a record confused about what the fact issues are that the judge would it be your position that we should find him or that we should send him back to i don't know that i have a strong preference i suppose because she's the trial judge maybe she should get the chance to do that although i know you have the authority to as well and we've cited the reasons in the record why we think that supported so i think it could be done at this level as well the very last issue with my last two minutes i'd like to just very briefly get into is this separate issue of punitive damages that was raised in the appeal i would submit that the collateral order doctrine does not provide this court with again starting with the proposition that we believe that because it wasn't clearly established that one could take photos of police activity that this branch is entirely qualified immunity on the unlawful arrest now recall that under the qualified immunity analysis the qualified immunity attaches when the officials conduct does not violate the clearly established statutory or constitutional rights which a reasonable person would have no the poly we believe that under freeman v gore which is a th circuit case out of two thousand and seven courts cannot ignore the qualified immunity gives ample room for mistaken judgments  protecting all but the plainly incompetent or those who who violate the law so argument that she may or whether or not under these facts are reasonable police officer would have believed he had probable cause we believe that especially since not all police officers that work for dart in this case had notice of the photography policy that miss branch could have had either probable cause or good banks believe of probable cause or mistaken probable cause we believe we argue in this case that she did in fact have probable cause to make the arrest again not to belabor the point but that because a reasonable police officer did not know at the time the photographing police was clearly established that miss branch would have call it would have arguable probable cause to make the arrest we believe she had the authority under four hundred and fifty two the transportation code to order mr adelman off the property because by his own admission he was not using transportation services thank you both sides