trial that's it in antonio bellers case we have three affidavits for arrest warrants so worn out by police officers the testimony sworn in those affidavits was presented to a grand jury fifteen months later so in each of the arrests we have an affidavit at it there all this this similar technique we have an affidavit and arrest warrant he's arrested at that time not post indictment at that time and then we have subsequently fifteen months later all of them presented to the same grand jury and you had to in the evidence that we've presented the videotapes from from various sources dash cams and from civilians you didn't file a reply brief your principal brief said that you would seek to supplement the record with those videos actually we need to i thought i'd thought there was a problem with it based on the government's brief cities brief but then we called the clerk and learned that we had in fact filed those and videos and the clerk assured me that they would be make sure they made it up here and they confirmed they made it out here so that if that if that's not the case why in the grand jury also army bueller himself testified in the grand jury as to any or all the incidents you know i  offered he did testify in the grand jury yes a wooden wouldn't the fact that bueller and other witnesses that presented his side plus the fact that the grand jury didn't always return the proposed charges suggests that it isn't a tape you have a case that says when the grand jury hears his story that he wasn't he didn't spit that could still be a tape so if the problem is the time between the arrest and the grand jury and that should not that's the you're looking at intervening cause whether there's an intervening cause concept or traditional tort concepts and so in all of the cases that discuss an inner being caused that cause that ultimate thing could cut off the liability or the damage at that point our liability is fifteen months of time period from the arrest and till that point and the grand jury should not be cutting off the plans or determination should not be cutting off that time period in addition that's not our probably decided based on the particular facts in the in the circumstances that arose and caused that ruling to occur it is the cases in each of the other circuits don't really conform with that even the ones that the city is siding are talking about this issue in the way that i just presented it that is that the intervening cause if it's going to cut off liability cuts it off from the standpoint of after the grand jury indictment occurs but i would also point out that each of those cases in the fifth circuit appear to be the arrest is post indictment as opposed to in this case where the arrest is pre indictment it's if i'm if i'm reading their facts correctly that's the way those things happened there were no cops put on the person and till they were indicted and so i think there's a possibility of even get them where they want to get and nor does the supreme court precedent in gersten and kaylie get them where they want to get i mean gersten is only making a determination that a probable cause hearing is of some sort is required for defendants and you gerson had the defendants in florida were not getting any kind of probable cause determination that's what they're determining in der status to make sure that they're going to have some kind of probable cause determination in the initial phase of the case and caylee is from the grand jury determination to cut off all liability we have it just a in standard criminal procedure we have many procedures that i'm subsequent to that time period where we do raise the issues of probable cause and they do get  suppress motions to quash indictments there can be a writ as gerstein even mentions there could be a writ of habeas corpus that can appealed all the all the all killed all the way up that would address the grand jury's due process and whether or not a probable cause determination was found and so we don't none of those cases are helpful to them in any way mr b are himself looking at the looking at the general facts of the case as a graduate of west point and iraqi war veteran military service that led him to those conditions post graduate degrees from stanford and harvard he formed the peaceful streets project and this has really been a thorn in the side of the awesome place department he formed that after witnessing police abuse and then being subjected to police abuse himself that's the first arrest that's what caused the formation of the peaceful streets praga you then see a concerted effort by the city of austin to take out the movement to stop the movement  there was an end camera view of some of the some of the testimony in that case and some of that information was provided to miss thompson for cross examination of the witnesses he was found not guilty in that trial we also took depositions of the officers and ok in the depositions of the officers we asked them at least most of them were asked did they say the same thing in the grand jury and they would confirm that we know that's the case to you have an really is that they're pretending as they're fearful of mr buehler which is why i give you his background there's no reason and they have no in real fear of mr beeler whatsoever the city's brief tries to kind of suggest that maybe he's has called to are one of those arms or guns the only thing that he's ever armed with is a camera and his you know ways and his voice is unfortunately for the city been very successful and empowering a movement not just in austin but in texas did either in an affidavit or himself in the grand jury say he was cussing at one of these incidents oh so the jury would have assess the truth or the falsity of an officer's representation that he was fearful so that the greater the jury a grand a grand jury and you have to if i still look at quadro in our case laws saying that that's a yes to the grand jury did not get to see the videos and did not get to access the discrepancy they merely heard the officer statement and that's what i'm saying the officers line about th officer is not really fearful the officer is not really concerned for his safety the if they had had the video that the jury trial had they would've been able to see that if they had if the other two cases went to trial as as you can the evaluation you can do now i would i would point out as an aside i don't think judge lane did that evaluation and i think that one of the results that can occur from this hearing is it to be remanded to tell judge lang he must actually weigh the evidence to determine if there is evidence of taint or exactly and so so what you'd be looking for in the video and that's what i pointed out in the in the briefing that's kind of one of the things that's easier to see is you would see a spitting motion and you would see something you know saliva coming out at some point and you would see a y p motion or something to indicate that and there's there's no such action whatsoever so that's one of the ones that's easier to see there's also in that particular that first arrest officer board ski attempts to say that he that antonio beeler is the aggressor which when you see the video as you can see antonio is not one second the aggressor not when he's videotaping or tempting to videotape because he was actually too nervous and he didn't get his phone off of his phone doesn't get her nobel what the george so did so that they no bill did see  in this case even for a different charge what matters is what probable cause with what the facts of the day obs are based his determination on and matters if in fact the grand jury was presented all the information so what we're saying is both of those things that that the author did not have probable cause at the scene and that when he presented the case of the grand jury he large the same lies that he did in his affidavit that in fact that he was fair if you're his safety and the person was interfering with his duties doing what i mean  was in the in in my space and he was not listening to me to stop stop doing what he was doing but when you watch the video he's not doing anything in violation of any order he's merely standing there holding a camera appearing to be videotaping variety of that particular one combines a variety of audio and video there is that that was at a gas station and so there is video from the seven eleven gas station there is a person across the street mr blackford who actually and sees what's happening and he pulls out his camera and videotapes and you had that videotape you didn't have dash cam and you have body mikes on on on some of the officers so it's a it's a combination in that particular case i think it's probably a combination in each of the cases too that one is one is one that you can you can see them the differences pretty larry really also see in that in th grander scheme of things the effort to control this movement by creating policies and rules instead of encouraging the exercise of the first woman rather discouraging it by providing a rule that a particular do something and they don't do it so just tell them anything to do something now mickey auster riker from the national photography association wrote to and called and spoke to the chief and said that is insufficient you cannot in fact tell someone to issue a random order that is an unlawful order we offered for free to help the chief draft an appropriate policy on videotaping and offered for free to train the austin police department the chief declined both of these services and they were there's a great discrepancy almost precisely the same discrepancies with the exception of that the officer appeared intoxicated that case none of these officers appear intoxicated but the facts are very similar and they did in fact find that taint and that's the madame please the court what you've heard from counsel is basically merits arguments to explain did not issue an order based on the merits in fact he specifically stated he was not going to the merits that they could not reach the the circuit it's very clear and free of conflict it's been almost three decades that the law of this circuit has said that a finding by an independent intermediary conclusively establishes probable cause back to the point that's correct term and in this case we actually had four independent intermediaries although judge lane only relied on the grand jury i would assume you relied on the grand jury based on this solely on the grand jury findings but there were also three separate magistrates who found probable cause so for three decades this court has found that the fifth circuit that an independent in unpublished opinion of allen the jackson county mississippi this court found that the grand jury returned an indictment and based on that the opponent much show deliberations were tainted and as judge lane emphasized there's no evidence in the record there's a great deal of speculation and guesswork and accusations but there's no evidence in the record as you recognize just they did have the grand jury transcript from the criminal proceeding that yes your honor and she has just admitted to that but no excerpts from the granger a transcript was ever submitted as evidence there is no evidence whatsoever from the grand jury so they had no evidence of taint of the grand jury and no evidence of ten of three separate magistrates notably they've never pled taint in this case they amended their pleading twice the second amended complaint is the life pleading never does the word taint appear there nor did it appear in their responses to the city's rule twelve dismissal motion in their response to the city's rule twelve c dismiss motion we had to dismiss the motions they never raised the issue of tate they only learned of the possibility of taint as an issue in a ruling from judge lane and so for the first time they raise it raised it in response to summary judgment magistrate or grand jury is hard to prove taint because a grand jury secrecy rules and yet your point is the first grand jury first incident they had the transcripts but as to the second and third which you agree with them that the psychs case is the best sort of blueprint for how a plate of can actually still prove even though they don't have access to the material i think they've never shown they didn't have access to the material instead they do we know whether they know whether the videos were shown to the grand jurors or not there's no evidence in the record that they were they were not now so that's that's sort of the difficulty of the taint logic is that they can't get access to that information but as you recognised they heard the testimony of mr beeler himself song and each grand jury was a one overarching there was only one grand jury for all of the four charges that were brought against mr mueller the fourth charge being that he  defense witnesses there were several other witnesses that testified before the grand jury did you have any case you know over the would seem intuitive to me a little bit that if the grand jury heard both sides as to debatable issues like was he f e then then presumably the fact that they particularized their indictment didn't give the felony did give the misdemeanor suggest that they were misled they just didn't believe that we do have a case that sort of goes into that i can't  it for you at this moment there are cases that side to that but as you said the grand jury came back with lesser charges that came back with the failure to obey and frankly there is no dispute in that because even in the second amended complaint admits that the officers gave him orders to step back or moods he simply disagrees with those orders he has of the position that a lawful orders why because he says those orders were all issued while the officers were conducting investigations twice they were trying to standard field sobriety tests and another time they were executed last morning now sixty eight in austin is somewhat like bourbon street in new orleans where you have many young people making out my statement your letters and it is the role of the law enforcement to help these young people make better decisions or stop them in the middle of those decisions and that's all these officers are doing is they're making arrest based on probable cause or they're attempting to determine whether or not there is probable cause to arrest or detain these subjects who appear to be intoxicated there's no basis for any difference in the january first arrest that goes probably the maybe it's an overstatement that the record doesn't suggest there's also animists directed at him but there's no basis for animists and the record does clearly establish that there are hundreds of videos by mr buehler in the peaceful street project hundreds of videos they follow a p t nightly now if abt wanted to convene on mr bill or we would be announcing his whereabouts it's the other way around is mr buell who determines where the law enforcement officers are performing their duties and broadcast that so that everyone can things on law enforcement it is in the record that in fact mr buehler once called since this is been ongoing in two thousand and twelve once there's also been bench warrants issued for mr buehler on his criminal proceedings for these arrests where he did not appear and the magistrates in those cases issued best words now anybody can easily have executed on those words but being prudent showing restraint we never executed on those warrants of the hundreds of videos is a video with the video the incidents contradict conclusively statements that he's made especially the one that he's back with that created tribal issues to take no your honor and i don't think that goes to taint at all there may be a disagreement on that issue but that doesn't go to tate and the charge ultimately was failure to obey so that's not really relevant but to answer your question the video is dark and small and grainy at night and so you cannot see it but you can hear officer morse he clearly say spontaneously and i believe was a minute a transcript as well oh you spat on me so it is a spontaneous utterance by officer on board ski who would have no reason to make such an accusation this is a nationally honored police officer by man and by mothers against drunk drivers for the work he does in deterring drinking and driving but i think this gets away from what this case is really about and that is three different magistrates and one grand jury found probable cause now they only have to find probable cause arrest that's all they're not they're determined guilt or liability just probable cause and they found that independently it was appellants burden to show taint they never even pled taint not until their summary judgment response after they learned of the possibility of taint as a defense from a ruling by judge lane for the first time they raise the issue of taint but they submit no evidence  gentling recognized all they do is they say well their expert says he thinks the police were motivated by malice mo on january first no one knew who mr mueller was this is the first time anyone's ever encountered him they had no idea so they had no reason to have any malice against him as is in the record from the officers affidavits from that night we had never seen anyone come up and just inject themselves into an arrest that they knew nothing about with such anger and such costs ality and it raised concerns for them why is he interfering the passenger in the vehicle that he alleges he was trying to defend that was being abused was texting police officers are trained not to allow subjects to text from the scene concerned that they may be drawing reinforcements and they'll be outnumbered and suddenly mr mueller arrives and he is so hostile now it's very clear that in every instance no one was asked to stop filming in all of these arrests they're all told you can film you simply need to be at a safe distance like other metropolitan police forces the austin police department injecting themselves when every raised any of the photographs or video taken by mr buell are and why would we want to interfere with the filming in the january first arrest you would see on the video that suspicion or that he then repositions his vehicle so that he can capture this on his dash camera when officer slider arrives he positions his vehicle so he can catch the other side of the vehicle so these officers have intentionally positioned their vehicles so they can capture what they're doing on camera they're also at a very famous one which is on a major thoroughfare exiting six treat which were we catch many subjects suspected of intoxication  they know the seven eleven has security cameras so they have no reason to interfere with anyone trying to film or photograph them in fact the driver of the of the passenger in the vehicle with mr  he continued photographing unimpeded we he in no way injected himself into the situation the officers had no concern about him so he also photographed so why are we trying to stop the photographing the same thing in the other incidents in the next incident which is on august the twenty six again peaceful streets project is there with many members all filming they all cooperate asked to step back asked to move they all do so it is only one individual who refuses to comply with lawful comedians now he admits that in his pleading that he was asked to step back he was asked to move and in each case he says that's not a lawful order and he would not do so so there is the failure to obey to the grand jury found no counsel had previously argued that is a lesser charge but all of the case law says that it doesn't matter you're not there to sustain a charge your system there to sustain probable cause to arrest and whether the probable cause was based on that charge or any other charge is not relevant the argument about whether it is pretty or post indictment is also refuted by the case law this circuit has consistently held in since nine hundred eighty eight that a grand jury or only the most obvious and went on to talk about the grand jury returned an indictment they show no fifth circuit case finding otherwise the same is true of the u s supreme court as recently as two thousand and fourteen they gerstein which is from one nine hundred seventy five and they say that the grand jury says without review oversight or second guessing whether probable cause exist we have that in this case said you cannot demand a do over you cannot put the judge against the grand jury as judge lane said he had to follow the circuit precedent which is clear and without conflict and that's what he did in this case without conflict you mean with the in our court yes that's correct your honor of the six cases which this court in most recently until twenty fifteen they've all been very clear they've not waver what i think superman has has has a acknowledged but the case law is in place and she's given no reason why you should deviate from that i mean under the rule of orderl if this is the merits argument then for the summary judgment shouldn't be granted she indicated there were four independent independent intermediaries as though those four people looked at all the arrests that's not what happened one that is right look at the arrest and then the same grand jury looked at all the arrest this case today obviously your case law can be changed in bank or by the supreme court but as it exists today where you are where are you in terms of of the decision that we should render i think exists today i think you have summarize for us what you think the evidence is that's in the record that we will find in this record that will indicate a change under our case law so so the our case law enforcement doesn't say exactly what change should be so that if you look at some of the other circuits then you can see they talk about perjury by the author being something to look at that's why the psychs case i thought was the best one although some of the other cases in fact almost all of the cases in the other circuit say here is what taint can be and they say i will review the transcript in camera he reviewed it in camera and he allowed that defense attorney to have for purposes of cross examination not to give to us the plaintiff's counsel but for purposes of cross examination some portions of that now you do have the trial transcript so you would have the benefit of anything that she had in that was material to impeach that anything that was material at that point to impeach on that first arrest and then as you see the jury found him not guilty so that actually proves that  haven't given any trial transcript suggesting anything in to us like you have that you have the whole trial transcript to from the from the first trial would you identify as showing a false statement by that officer in front of the granger so i can i have not gone through specifically through the transfer legal question but i can legal question i had because you time in sykes did the plaintiff himself get the opportunity to testify in front of the major i don't know i don't know if the plan of testifying from the grand jury whether it's in there and i missed it i didn't let's see if they would have heard his side saying what he what he just said didn't happen but they said they heard they heard that taught me important here the two sides are actually a good aspect of the grant of that particular here but they did see the video and so they made a determination to made only on the officer's testimony and any other testimony presented they didn't have the video to be able to show them that the decorated officer that that that she's speaking of wasn't the one that was telling the truth versus mr is another good reason for the fifth circuit to be really looking at those of course that might be a different a different stage of the proceeding and also that the policy reasons of the relooking at that because perhaps it was a misunderstanding of what the supreme court is not really sure of where the role comes from but perhaps it was a misunderstanding where the supreme court would go on this issue and i think the supreme court is showing that it does not support this argument and i think that the case law at the supreme court level is only talking about initial and initial stage and so there's every reason for that to be really looked at at that point i also think that it's still potential to distinguish the fact that the cases in the to circuit appear to all be post a post indict and so our indictment and it occurs and immediately at the at the scene with an affidavit that is presented only to a magistrate that is a one sided proceeding with no confrontation new cross examination and no presentation from the