my name is randall cowan and i represent monica vos and this from the district court committed reversible error when it granted qualified immunity for basically three reasons there was no reasonable that no reasonable officer would have found probable cause to arrest monica for any reason or any crime it ever only held the speech only exception for interference only is probably the most important and that is the definition of the word put because the i believe says that monica admitted that she put her children in her car when and put is a daughter child teenager if he ordered her don't get in that officer's car get in my car aren't there cases that talk about it within the context of the st amendment defense that talk about interfering with an officer procedure even though there's no physical act by the person who's the aggrieved person well the interference statute itself says speech only it doesn't say speech i understand that i guess what i'm making a distinction between speech as in stating things to the officer in speech i think there's there's a case that talks about if someone is ordered to or a requested to move their vehicle and they say no i'm not going to move my vehicle that's not a physical altercation and yet it nonetheless would constitute interference so i'm trying to get you to distinguish between and that would get hung up on this word put and i understand your argument because it's a colloquialism you know to put something in the car or put someone in the car is a term that could be interpreted either way but if she ordered her to get in the car is that not how does that what you're what is laws can expand civil rights as well and this exception for speech only is a texas in the texas penal code and so it does not make an exception for for instance orders for children however let's say you're saying there's no state case and i'm willing to go with you on the statute it's texas state law and i guess that within the context of that there is there a case under texas from a texas court that makes a distinction between physical interference and a verbal st amendment protected statement and an interference by inaction or by ordering someone to do something contrary to the officer i do not know if there exists such a case however once again and must go right to the statute which says beach only so that is pretty clear that speech only it doesn't say speech does not claim any touching doesn't even claim that she open the car door for her so what we have here is the word put if one spouse for example asks the other spouse put the teenage children in no there was no action if we look at freeman we go who are freeman go or even said that there was interruption but it just doesn't but that was it was pete so we're not saying that speech doesn't delay or did delay and interrupt because the issue is what would every reasonable officer know right to overturn the qualified immunity ruling and here we have officer good responding to a claim of child abuse and then he speaks to the child and to miss mosses credit she lets the child go out then the child confirms there's been a threats and violence and he then seeking to segregate the two till the mental health professional calm says get in my car and then the the video or the audio is pretty clear she says no get in my car and and it when i look at the federal and state law it's pretty confusing what officer good would think at that point wouldn't that be interfering she's commanding the daughter to do something opposite from what the a federal case it's well in the eye does he have fair notice that when she's saying do the opposite of what i'm saying protecting the child you know good couple of reasons one is actually on the video he says you're close to interfering that indicates that he had contemplated whether she was interfering or not and that made it in terms of that point that she was not in good very furthermore and that that's sort of i mean that to me goes to officer good is just trying to do his job as best he can with awareness of the law is saying don't don't keep interfering i'm trying to protect the child stop this well and then as soon as the mental health person shows up ok fine that the professional spoken to her and she's hospital you know the reasoning was is that her doctor locally had told her the best place to treat for mental health emergencies is downtown houston so the police officers hearing all of this  about that there was a crime committed but of course if an officer can just merely claim on video you are committing a crime only look on the video on the video the audio i said you were committing a crime therefore you must have been committing a crime that's for the jury to really decide this becomes a fact issue on summary judgment and there is a fact issue there whether or not there's no fact issue that she on the audio says do the opposite of what the police officers are right he says i want to put her segregate protector in the court till the mental health and she says go to michael every crime has to have scienter your honor and she has to do this particular crime with criminal negligence there's no doubt that the mother who by the way takes care of three disabled individuals and a mother and she is a retired detective in the sex crimes and she was retired so she kno law herself but she was concerned also because the the young teenager kavi made the call from the back the back bedroom apparently or made the communication such that the police came over so what we have here is a mother who is extremely concerned and then when the officer said hey don't do that or made some interruption what happened then was she immediately comply so it's a fact issue whether she would have the scien necessary for a crime because certainly let's say that someone is playing the playing on the radio when they're driving down the street and they actually run into something kill them well a person would be arrested for murder  the young lady comes out of the house and the officers speaks to her without the mother present without the plaintiff in this case present and realized to him that he had thrown a pair of scissors or something attard and that this had all culminated with this phone call so the officer is responsible for the knowledge that he possesses at the time which of course comes from the teenager is is that correct before the mother comes out and says don't get in the officers car well there are other orders that  took place but when the officer if i'm correct you know relates the fact that she's having a mental health care emergency and so as a mother if your style is having a mental health care  my point is that the officer possesses knowledge imparted correct or not imparted to him by the teenager herself and then the mother comes out and says no you can get in my car because i'm going to take you but the officers thinking that there's already been a confrontation of sorts including some apparently a violent act at least one violent act so when we put ourselves in the position of the officer where is the authority where is the guidance that he should have employed to say oh no that's ok go with your mother i know i said to get in my car but your mother is going to take care of it so you get into the mother's car on what basis would he say that well what as an experienced officer not an inexperienced officer so he that's deliberately in the code so we're not requiring the officer to you know keep keep abreast of recent case law from the supreme court or from the say that circuit court of appeals we're asking him to be very basic on a very common a common charge i do criminal defense work and interference in public duties is a common charge as a matter of fact i independently that alone would be interfering because that speech becomes a command to act it commanded an action and i would guess once i'm going to get back to the science or my client never attended to interfere as a matter of fact when the officer you know objected to her getting in the car to go to the hospital for medical care she immediately complied so there was there was no there was no further action to say no the officers are wrong no you stay in the car let's put it into drive none of that happened immediately upon the words coming out of the officers mouth she complied with the officer once again i thought and her ex declaration is pretty discursive an extensive which is good i mean we've got but but i thought it was pretty clearly along with the video audio pretty clear she was telling him no she my daughter will not be getting in your patrol vehicle once again the video exemplifies that we're talking about speech only we're we're not tense and dangerous situation where an out of control victim surrounded by eight attackers and appellant was physically getting in the officers way physically like you know getting in the way preventing him from moving forward so and the reasonable particular kind of conduct consisted of speeches a factual in every speech only as a factual inquiry for the jury so if you look at haggerty the interference was if the interference was much higher getting in people's way here don't really thank you your honors may please the court there are two issues that i want to address st there's no genuine issue of material fact that sauce interfered with deputy goods public duties so the judgment is correct nd in any event there's no genuine issue of material fact that good is intitled to qualified immunity so the judgement is also correct for the record i am just in sci fi for on behalf of apple lee's gregory good and fort bend county texas interfered and admitted that she interfered in child protective services ordered a welfare check of the boss's minor indisputably interfered by one putting k b into a car and two failing to follow good instructions counsel when you say that can we agree at this point that there is no physical interference with what officer good and the others other officers are trying to do what depends your honor what it means and physical by physical she certainly gave mandated direction immediately is not physically acting to prevent an officer from doing something she's not grabbing caveat ollie's act that that that's that's what his argument is in order to try to cabin this into the didn't agree that she is giving your position is that she's giving commands that are contrary to the officers which i understand you can we agree that she is not physically taking disagree haggerty because she he did and she did get in the way and she got in the way by by countermanding the instructions by moving after being told to leave the scene let me let me do my job speech plus well this court your honor this court has repeatedly said that failure to follow directions is after being warned and continuing to fail to follow  good told the boss quote this is an investigation you tried to interfere and drive off with her unquote vause immediately admitted the interference by stating quote i was taking her to a mental health hospital because you told me that she was in a mental health crisis what would any mother do unquote so you're saying that the declaration remark about put past tense in the vehicle actually is borne out that she was physically in the mother yes yes yes and that record citation is i know where it is in the declaration it just from my best review of the record it seems like that whether it's colloquialism it didn't appear that the video w that the daughter actually ever was in that car but you say she was right at that video citation well the video doesn't there are videos that show her in the car but my point was it's car no in the police car not in the mother's car they didn't start recording until after that so she was she was in the mother's car but there isn't a record on that what my point is with this is that she's saying she never put her in the car but she's admitting on the scene twelve minutes after the arrest that mr dawson saying yes i did put her in my car and since boston is just back from reporting on the scene it should be admissible as adoptive statement of a party opponent on relied on her declaration but i think you're saying to us in the sum wrong that that statement in the audio is confirming what she put in her declaration we have searched your relied on yes yes the declaration statement was when i put k v in the car i was taking her to a mental health care and i told good that the magistrate judge did not cite the on the scene record and it's not even it's on a video but you don't see any one it's an audio from a video if that makes sense so they're off scene but it's recording what they're saying so but there's other interference as well  voss after being warned failed to follow good instructions good told boss that allowing her to leave would be interfering and this is from the audio we cited in our brief at zero minutes twenty nine seconds to thirty three seconds last vi we protested that they take a b with them and boss tim katz telling to go get a warrant good even warned boss at fifty one second fifty two seconds that she was about to be taken into custody yet voss continued to interfere fossett just put k b in the car against the instructions and just tried to drive away that's it mission we talked about earlier the boss continued to try to foist k b on good you can hear that later voss refused to comply with good instructions the not when he told or not to because there was a c p s is a child protective services investigation that good and his colleagues need to complete they need to call text santa which is the child protective services partner for there to be an assessment done at the scene by mental health professionals that's what the regulations are in texas and fort bend county for such a child protective services mandated telephone call when there is a suicidal potentially suicidal child child so all these actions are positioned all impeded goods ability to finish this call and be dispatched to other citizens in need of this is interference but even so bosses eviden submissions as summary judgment are absolutely insufficient on these questions the two other officers at the scene make wiggin and sergeant ellis signed affidavits that good had probable cause to arrest we put this at issue in declaration or an affidavit that goods actions were reasonable you can look through it there's nothing absolute nothing in there about the standard what a reasonable officer would do more were they did not hire an expert  upon these failures preclude any need to even examine the response a good probable cause determination because he's entitled to qualified immunity on the st prong just on the evidence of a wre but more importantly jurisprudential this evidence is sufficient for reasonable officer to conclude that he had probable cause to arrest boss for interference there's a preference for resolution of cases on the clearly established law pro the supreme court recently counseled lower court should think hard and think hard again before addressing both qualified immunity and the merits of the underlying constitutional plain this is westby versus district of columbia one hundred and thirty eight supreme court five hundred and eighty nine no seven here the district court did correctly decide that good was not did not violate boss's th amendment rights but i think and i want to so raise and lesser other questions about the incident i want to raise that i believe to be a much more efficient resolution to hold that fosse fail to articulate a clearly established right the case law is just do not support her on this good is a sergeant but the question is not whether good is a good cop the question is whether goods actions were plainly incompetent or show that he knowingly violated the law with it but they do cite a whole body of federal and state law correct haggerty those are ours in the texas case carney all of them saying any officer in texas knows you can't base an interference arrest because a verbal speech however hostile it is that correct but there is more than speech here because there's and they she ignored instructions and impeded the investigation well the ignoring instructions a little hard for me mentally to think that's more than speech but then you said impeded and the best fact of impeding is having put the daughter in a car yes it's not failing to go get identification no relying on that at all we're not relying on the failure to get identified in your brief you say the two crimes are hardly discernible what i'm saying is that the officer go well you can rest in for either one because they're hardly discernible i didn't understand what would be the basis to arrest for failing to a mother walks out of the house startled by all this she's a deputy sheriff herself from the child abuse unit and she's saying i'll get a professional for my own daughter thank you now she does it with much more adam a c but where where would you how would you conceivably have authority to arrest someone for not a dentist find herself as the mother especially if there's confusion as to whether the mother can even go back into the house to get the documents the policeman appeared to want well you don't see any crime there at all i'm wondering if you think those two well it's hardly discernible she was nearly violating some other poor provision or is it purely th you agree that that makes really no sense i mean it's point of contention the statute doesn't criminalize speech only fails for two reasons st you know what i'm talking about i couldn't understand the st reason the nd reason is the one you're urging it wasn't speech she physically interfere and that gets us back to well what physical interference the physical interference was isn't as well written as it could be it should been written interfering with the investigation continuing to invest of the investigation and failure to to follow instructions i put it in my brief we have the don't can tell the state case we have the cave key versus state case both of those are his senses of failing  follow instructions where the officers is basically saying no go stand over there and the person continues to be on the scene haggerty is like that as well ok i need to go back and look at those are two state court cases where the the if the interfering conduct was verbally telling someone to do something opposite correct yes your honor are you familiar with the case i mentioned to him which barnes yes yes i mean not that you didn't cite it that would seem to me quite central to this whole inquiry i'm f exact argument you're making or are you a little bit different i mean it's in line with the fact that speech that crosses the line to actual impeding or interfering with an investigation ongoing investigation interfering with instructions is it is well rather it crosses over the speech only threshold it becomes a command to do something physically yes ron yes that's a lot more than a mother  the protocol was for tech santa to come onto the scene and by leaving her by letting her go off with with her mother that is not having i mean how do we know that she would have gone to a hospital tech santa has to come out has to evaluate it's all under a child protective services guidelines that's how it goes hard on in any county in texas those are the procedures are supposed to be followed if those procedures are not followed then the officer w e face a nine hundred and eighty three suit for some other reason if they draw yes or human hands the fact being true that she actually was in the car going to be driven off it could it wouldn't you wouldn't be arguing the same now if there were just this verbal movement where she says k v get in my car but actually never did would you be in the same posture legally it would not be it would not be a stronger face your honor i will concede that but again i mean we have the declaration which is which why the a declaration of her and the that is what measure a judge johnson judge lake relied upon that was their st reason that still is valid but we have which we didn't come across and i'll just ree mphasize it because it didn't come across clearly in my briefing because of the you know these videos are cumbersome i recognize that but you know when twelve minutes after the arrest last good tells her you tried to interfere and drive officer and boss admitted boss respond i was trying to take her to a mental health hospital because you told me that she was in a mental health crisis what would any parent do it's that tape at twenty three hours thirty two minutes ten seconds to twenty five seconds is that sixteen seconds of tape that really are far better more direct citation of the evidence than her  declaration which is what the lower courts relied upon i did want to give your honour's a case that i didn't cite because it was unpublished and it gives a pretty good scenario of a similar on qualified immunity the officers wife at the facts in this case officers wife no delivery truck caused damage to a pole in an apartment complex saskin the officer then located the delivery truck and striver who was attempting to live or a package to ice in fact i sent back complaint he won his package when i sent back return to the scene after officers ask and told him to leave that's get arrested i sent back for interference and he ended up spending thirty three she was only restrained because she was interfering with the ability of the deputies to do their job and perform the protocols with a potentially suicidal mind thank you counsel and i just wanted to address and some mation quickly if we do think that at that it be easier rather than getting into the merits to the extent and we appreciate the district court wanting to reach the merits and they did a very thorough opinion but it would be a little bit better to have these decided on a clearly established law prong just from our vantage point the county as judges joined by judges alderman smith noted that going to the merits on every single question was very difficult societal costs it's contributed to low officer morale  crippling choice as an officer of recruitment and it causes division of official energy from press and public issues and dampening the art of public servants so for those reasons we would like the court to affirm on the lack of clearly established law guarding the unpublished opinion there are reasons why opinions are unpublished and furthermore the th circuit court rules say that they can not be used as president so in regards to eisenberg that was actually one of my cases and the difference with ice and bach was is they said that mr eyes and bach was told to leave the scene while while he was talking while an officer was talking to an individual and then he came back to the scene and was next to the individual so there was physical getting in the way and the way like haggard she was physically getting in the way here not saying she's physically getting in the way but once again i've got to get back to speech only the statute doesn't say speech only if it doesn't interfere it says peach only is not interference if i were to say to an officer who's investigating the scene if i were to say to him hey officer how you doing today there was everything going good you watch that football game and that slows him down to talk about football game i have interfered there's a reason why it's the you know speech only and regards to law enforcement lowered morale this is a retired detective and i think there's a big big reason why you should not be putting people into squad cars and handcuffing in people when they have done nothing wrong that is demoralizing to the public but it is helpful you've litigated even some of the cases he's as it would would you say that officer good had really a clear fair warning it seems like a really intricate if failure to follow a command counts in action counts it isn't that crystal clear for police courts got into a fifty page order and he's supposed to know about the fifty page judgment or opinion of a court this is straight on of the penal code speech only is not interference not speech only if it's a command not speech only if th saying is a threat and so his heavy emphasis was she actually the mother actually put her in the vehicle away without looking with the words only but also it is that he is that book that if the kid got in the vehicle that's words plus action in i would debate that it was it words on her her part the statute never says what's a rd party that is like a regular witness but i would like to get back there's a huge distinction st of all this is the result of a mother who's they even admitted on the on the audio it says i am concerned i don't know that what i'm concerned about my daughter i want to take her to the hospital where to get some treatment and then the daughter gets an a in of her own accord my client doesn't open any doors do anything and then immediately upon the officer saying no don't do that it's returned so there's no scien again there's no culpability here she has to every crime and every officer knows this you can't accidentally do a crime you can't accidentally murder somebody by you know adjusting the radio when you're driving down the road and i think that's left out this discussion here she has to have some culpability she has none and this is for the jury i mean when the jury a looks at this mother who has just been told by an officer your daughter is suicidal and the mother who has been dealing with his daughter for a long time wants to go immediately to the best hospital she knows there's no culpable mental state there there's no guilt so basically what we have here is a statute which clearly says speech only is not a crime regardless of whether or not there is some interference because any speech could potentially interfere such as in the war which is freeman court is it childress if the police say move your car in you don't move your car even today in active it would seem like we've said that speech plus and then we've got the barnes case where the woman's verbal command run is speech plus here if the police officer says go to my car and the mother says no go to my car and it would seem like i would follow in those that line of authority at least it's not clearly established it doesn't in children versus a glace yes or the arrest be physical thank you thank you counsel