is alleging that he was wrongfully arrested and there was a violation of the fourth amendment and this case so we don't simply have a situation where mr foster was arrested under regulate we have a case where mr foster was not arrested in a field or on a road or in a parking lot we have a case where mr foster was arrested and the sheriff's office where mr foster was telling this i mean what we see on a state police certified concealed handgun instructor as far as what i did having the gun entirely in my motor ninety five point six six exception of the five that says that having a gun or firearm entirely in a motor vehicle is constitutionally protected activity in the state of louisiana and here the sheriff's response was well we're going to make an example out of you and you're going to be in the newspaper tomorrow in this case as the court knows mr foster was arrested for violating fourteen colin that he's live points that that particular statute proscribes the all terrain or the removing of school bus or an area with in one thousand feet of the campus in this case the sheriff has taken the position after we filed our lawsuit that well perhaps that was the wrong statute ninety five point six now there is another statute that is directly on point which is fourteen call in ninety five point two and that statute deals with killing a fire all on school property and it has the same exception in ninety five point two it is the five but it has the same exception that the ninety five point six statute passed but in this taken the position well if we didn't have probable cause under ninety five point six we had it under fourteen call in ninety five which is carrying a dangerous weapon and then there are alternative augment as well possession or use of a dangerous weapon on school campus in this is i'm sorry this is section eighty five on a school campus during regular school hours or on a school bus now there are two reasons that we believe that the sheriff did not have probable cause on the fourteen cohen ninety five a five number one is because of the language in the ninety five point six statute and the ninety five point two statu and as far as the exceptions that we have talked about what that's simply talking about an exception to that particular statute but the wording is very important because the wording says in ninety five point six b five an exception to a firearm free zone is any constitutionally protected activity within the fire offers on such as a firearm contained and parley within a border vehicle same exception in ninety five point two c fought any constitutionally protected activity which cannot be regulated by the state such as a firearm contained entirely with him a e and with a statutory police officer we don't expect the police officer to be a judge or legal scholar but the police officer is supposed to know what the statutory law yes and of course here in this case we had mr foster actually pointing up the statutory provision to the sheriff's but in this particular case though we have the legislature with those two exceptions exceptions and ninety five point six and ninety five point that as far as having a firearm entirely in a motor vehicle that this is activity that as prosecutors will protect the state of louisiana and we the louisiana legislature are said that this is something that is not illegal in their state this is something that we and not regulate course kelso you've already had the preface properly so that the police are not supposed to be judges and some of these questions zero claim there would be intentional possession of a dangerous weapon on a school campus during regular hours question that perhaps a policeman on the street or even in the in the back in place a quarter sheriff was a sheriff or police sheriff's office perhaps should not be expected even if you have a finger pointing it at the statute is how does this exception into other subplots of this statute which are not put for whatever legislative reason were not put in fourteen ninety five and i've got the numbers right probably a five do they really apply there or not is there any cases is there apply there or not may be an obvious answer once it's all sorted out in court but is it sufficient to undermine probable cause at the time that this decision was being made it is an objective decision whatever two different bases there would have been even if that statute was was not contemplated the time where those exceptions apply the exception being the same one but separately number done in point two and point six does your argument is based on the wording of exceptions  the vehicle that that does not apply to this particular statute i would agree totally that there could be probable cause of august probable cause there are fourteen ninety five stacia where we would only need one exception then this is because our legislators already indicated that they saw a need to put it in more than one place and what you're saying is putting it once would have been enough it's true and i just see a problem  can not be regulated by the state and again as far as the statutory law is sharpness is supposed to know what the statutory law is he's not necessarily a bound by whether or not there was perhaps some court interpretation or there was a disagreement disagreement by different judges but as far as what the statutory law is the sheriff is supposed to know that is he supposed to know what's constitutionally protected i mean we keep having second amendment cases all over the country from the lower courts to the supreme court arguing about pretty subtle nuances about the second amendment but for purposes of qualified immunity you're telling us that this  that this officer should have a perfect knowledge of what's constitutional those are and certainly louisiana has a very strong constitutional protection as far as know water as far as a few things number one is that we don't have a situation where someone is being arrested and does not give an explanation to the officer is to why is there mr foster gave the explanation and in this particular case number one it was not clear that it was a private road why number two as far as this is out in the country the nearest house was perhaps a hundred yards away mr forster was on the roadway for perhaps a minute and the sheriff was following him so the sheriff knows that mr foster was in that roadway for a very brief period of time mr foster never turned off his car engine he went down the roadway roughly one hundred feet turned around stopped and he stopped so that he could check out something on his cell phone i think he was checking out google maps at that time and as far as this type setting if you have a roadway there are no enclosures there is no sign is saying that this is private property or no trespassing we was just of the court that simply based on custom and given where this occurred that mr foster had implied an authority to enter the way for the limited purpose that he end of the roadway for well if again if he in fact been charged for that and had gone to trial he would have been able to race  that with the judge or the finder of fact but the question we have is whether there was probable cause for a reasonable officer to to to think that that there was a violation you know and i was just as a court if there was probable cause to have arrested mr foster for trespass when end of the road why then there are very few circumstances where a police officer could not find trespass because a problem with that statute that needs to be addressed as far as the constitutionality of it and i'm asking i should not go on regular school hours what's your authority for defining when the regular school hours are largely the term regular jurado as far as the use of the word regular and that term regular school hours there is some louisiana case law dealing with the duty to supervise work courts have talked about  school had a duty to supervise a student after school hours and the court will talk about a regular school hours and then also that duty to supervise after the regular school day or after school hours there's also your  there is the louisiana compulsory attendance law and it's cited in our brief where a lot of that particular statute makes reference to compulsory attendance by a student during regular school hours and this wasn't simply a police officer who was rolling on the scene and saw students in the parking lot the sheriff had just dropped his son off at school and he was the the parent of a student at the school so the sh knew when school started and according to the testimony of mr foster he left the parking lot roughly fifteen minutes before the first go at the school so it's our position certainly as far as mr foster being in that parking lot not necessarily the one that was made by the sheriff but whether there is arguable or probable cause to find that any statute any criminal statute had been violated obviously the fourteen ninety five point six the only prohibition and that is the altering or destruction of a sign so that that was incorrect because no sign was altered in this case however the facts that were known to the sheriff s which formed the basis for the arrest were that mr foster had been on school property with a weapon in the console of his top and had stayed there for anywhere from two minutes i think to ten minutes depending on on who you talk to but i don't think that's significant the significant part is he had a weapon on school property and for that you look at fourteen ninety five five a day and in that statute it talks about as judge clement pointed out it talks about regular school hours which under that statute is not a defined term so we submit your honour's that it would be reasonable for the sheriff or any law enforcement officer to presume that regular school hours would certainly be on a school day when students are ads arriving to go to class perhaps looking over notes talking with other students talking with teachers perhaps preparing for the school day if there are they might be arriving early for a meeting of a club or for a band practice or in exactly and i and of regular regular out in the activity or for a conference with a teacher right and hearkening back to my high school days we actually had something that they called zero period which was a period before regular classes started where they were teaching driver's education classes elective classes so and i'm not sure in this case if that happened but any time that a student is on a campus especially during oh monday through friday where you know it's fifteen twenty minutes before classes technically start we submit would be regular school hours or at least it would be reasonable to conclude that but many wouldn't have made any sense for the legislature to have confined a statute protecting against the presence of weapons just to formal class hours when in fact if you have to be at school eight o'clock you have to be on the campus arriving at some time before then i would agree with that if you if you look at the purpose of the statute at least one of the purposes of the statutes i believe would have to be the protection of children teachers faculty staff and if that's the purpose of that any time that a student a teacher faculty or staff would be present on the campus it seems to me that the statute should cover that time period officer didn't even think about there at the time you know and that's just the status of the law and you know it is as you look at anything if the important thing is the facts that the officer had available to him or knew and the facts here are that mr foster had a weapon in his car and it was at least briefly parked in the school parking lot while students faculty and staff were present on a's quote unquote school day which i consider monday through friday extra curricular activities we can set aside for now so the sheriff knew that and the test on the devon packing case and the other cases we have cited i s whether those facts known by an officer would give rise to probable cause that any crime has been committed not necessarily the one that was cited and in this case we believe incorrectly side i'm sorry if the exception that you had a permanent and then it was in hidden in your god compartment contains some or without applying or going to situation i don't believe it it does because as the court has pointed out it appears not just once it doesn't appear in the definitions it does not apply to this entire section or chapter of the criminal code it's listed in those two particular statutes which address things that go beyond fourteen ninety five fourteen ninety five talks about the carrying of a weapon on a school campus during regular school hours or on a school bus period fourteen ninety five point two i believe goes beyond that and it talks about any time while on a school campus school transportation or at any school sponsored function  of competitions dances parties any extra curricular activities or within one thousand feet of any school campus so that's a much broader and we would submit that in this much broader context perhaps the legislature thought well we need to protect because somebody could just be driving by on a road within a thousand feet of a school campus and we don't want to affect that because that's not necessarily getting into the the type of protection that we were concerned here with in fourteen ninety five certainly correct that this is not just in fourteen ninety five six it actually is a clear statement that having a fair arm contained in terribly within a motor vehicle is  constitutionally protected activity within a firearm free zone and this is in ninety five six which is basically around what basically is incorrect but it starts with a definition of what if our own freedom really is and then it has this  about the same sort of our own free zones of schools and ninety five point six is you that somebody like the plaintiff here as a constitutionally protected right would he say boss say that again as with fourteen ninety five point two fourteen ninety five point six weeks of a firearm free zone and admittedly a school campus could be considered a lesser included area in a firearm free zone but when you w freedom little bit of heavy lifting maybe if you get your ride back to constitutional running but i think i think you are correct that there is a constitutional right at issue here but i do not think that and  mr petri had said that they're relying on the statutory language and i believe that these three statutes can be reconciled and i think that because ninety five point two and ninety five point six have a broader scope that perhaps the legislature has authority to regulate the time space manner of firearm carrying of firearms they said ok in this for a firearm free zone this broad area which in kopassus school campus and beyond we're going to say we're going to say clearly that this exception applauds however we didn't say it in fourteen ninety five which is much more limited it's talks about a school campus and it talks about during school hours regular school hours as as for this perhaps that constitutional right does apply and zone there is this right how can a five a five a b more limited when it's talking about schools alone made this statute itself may not cover as much but both ninety  about well more to it when you're talking about school zones that same right standpoint trying to preserve what the legislature has put on the books and i think that's that's the court's duty and to get to that to say because otherwise you're going to say fourteen ninety five is superfl and because it does not have an extension it cannot exclusion it cannot be enforced ok let's presume you lose this point frankly i sort of smell a rat here i don't think this arrest would have ever taken place if there had not been a friendship between trey and the sheriff's son so the fact that he's now coming up with what could very well be a valid charge this trust pass even though it seems sort of flighty and significant to situations and suddenly your honor is it is an awkward position to be an however the the cases that we are citing included in these cases are language that the motivation of the officer does not really matter if the facts that are known to him would support probable cause i mean we even have cases where officers have parked on the side of a road to entice a driver to drift slightly across the center line so that the officer could then stop the car for a traffic violation in thinking that there would be drugs or other contraband in the car when everybody knows if the officer didn't care about the center line violation but was only trying to cause the person to to commit that violation as a pretext right and i think that you know the inching close to that would be the detroit case that council had cited in their brief  where you had the two private investigators that were known to the police department as private investigators and they perform these courier services taking coins and chains from the bank to a laundromat and they were pulled over in the course of that and they had to conceal dawn and the the ohio statute said that's you can't you can't carry a concealed weapon except if you are in the process of conducting your lawful business blah blah blah so in that case that the officers knew that these people were engaged in a legitimate exercise a legitimate lawful purpose and they arrested them anyway because they were there was some bad motivation there on the police here yes the only reason why the sheriff was involved was because his son called him when he was called over trey's call and trey was very upset he had seen a black hole following him from his house into the school parking lot and parked behind him and just nobody got out of the car he didn't know who this person was he didn't know what their intent was he was very upset the sheriff's son just happened to be walking past trace car at the time and trey call them over and i don't know don't remember recall if he got in the car if he just talked through the door and he said look this guy followed me here i don't know what what what's up here i don't know if he's going to harm i don't know what the deal is so the sheriffs on call the sheriff who had just exited the parking lot he turned around and came back and he followed the guy  and if you look in the the the deposition excerpts that were submitted when the sheriff finally caught up to him and confronted him on that private roadway he said you know go on to a school property you know following a kid my kid goes to that school so yes that was part of the motivation of the sheriff because he did not know why this man who had no reason to be on school property and then he finds out he's got a weapon in market point he's basically telling the guy you don't trust pass on school property right so that would have been a valid reason to arrest him and that wasn't the reason it was given in turn the litigation it wasn't let's do this one because and i think because the district attorney's office and i was not a lawyer said i don't have a problem with that arrest i think you good to go on that so that's why they use fourteen ninety five point six what i have given that same advice probably not but that doesn't matter what matters is what did the sheriff know and whether that factual scenario supports probable cause on any crime regardless of whether you you can consider affirmative defenses but it's not conclusive on the probable cause issue and here coming in cold with these statutes i think that it's arguable that the sheriff would have had probable cause based on the say new to make an arrest on fourteen ninety five there's no saying in police departments and law enforcement agencies whether we like it or not the saying is you can be you can beat the rap but you can't beat the ride that's it can figure out a reason to bring it down town right and you know then that fourteen ninety five is the basis of the lower court's ruling the trespass was mentioned in a footnote really was not part of the decision the judge relied soley on fourteen ninety five although we had argued the other potential or possible charges so i think that it all gets down to whether the judge was correct in determining that a reasonable police officer on with the knowledge that the sheriff had on that day could reasonably have concluded that probable cause to make an arrest on any crime footnote including fourteen ninety five point one was present in that case and we believe that the district court's determination is correct we don't see where the any of the authorities that have been cited would cause this court to reverse that getting into the of the fineries of what is protected by the second amendment here opens up a can of worms that you know an officer on the beat even a sheriff even an elected sheriff does not have to exactly know whether that constitutional protection applies to this statute and we  are just a few points in addition to the exceptions in ninety five point two and ninety five point six there is also the louisiana concealed handgun permit statute which is forty calling one three seven nine point handgun even with a permit is a firearm free zone as the find by ninety five point six also in this case and it's in the record is as far as the school board's policy as to whether what mr foster did was improper at the time of this incident the school board had a written policy on fire oh i'm saying that one cannot carry a firearm in school cap a school boss within a thousand feet of a school campus subject to the exceptions  ninety five point two again we think it clear that because of the exceptions dealing with constitutionally protected activity the sheriff should have known that under ninety five he did not have probable cause one last thing that was a question as to what statutory protection there would have been for a youngster arriving at seven o'clock for band practice and the louisiana criminal code addresses that issue in fourteen call the ninety five point two because that statute goes to again within a thousand feet of the campus school campus school bus school transportation and even for school sponsor activities one cannot have a firearm subject to the exceptions in the statute including the c five exception for having a firearm entirely within a vehicle one last point of my bag as far as the facts of this case a question that came up that was asked of mr foster was well why didn't you notify the sheriff's before you started your surveillance and when mr foster was given the assignment he was told that there was a close personal relationship between the show from the person under surveillance and had known each other for forty years and fact mr hargraves wife was the chief financial officer in the sheriff's office and one of the great era g s in this case is that as far as the personal injury lawsuit that mr hargrave was against the lake off of police department we are sensitive to the challenges that police officers ha out on the street but we would suggest to the court that as far as does this case it does not present