what we believe is the course in practice in this regard of enforcement of these complaints called against these plaintiffs what we really deal with here more than anything else ron i think the most salient point in this case is that discretion is afforded these authors as they enforce or not enforce what they claim to be sound by elations here and here is something that has never happened to any other person out in any of these venues none of them have ever even arrested or cited the way the plaintiffs have the way planes have been taken to jail incarcerated strip searched had their clinic confiscated for more than a year on occasion and no one else has to suffer that in fact it's interesting been confiscate for years i'm pointing out things that happen are people and the city has not taken the same kind of action against anyone else why is that it poses the question what is going on with these people that i represent that is so different from those other groups out there and that is as we saw in the prior panel noted there there it's evidence and the prior panel noted this if this evidence would be a put suggesting that this that the allegation the difference in treatment is based upon the religious message that the spouse the city has not addressed why these similarly situated groups were would have been treated differently and even at the that we need to deal with the trial because whatever was said at the summary judgment which was what allowed me to go to trial now we're reviewing the trial and you're sane and so it's important i think that the judge made some ass factual findings against you saying you hadn't proved that they were treated differently is that correct i think what the judge didn't blow did was make those factual findings but negating evidence that should have been l  at also and that is part of our appellate argument here what we're trying to express isn't the council isn't the trier of fact free to credit evidence from some witnesses not credit evidence from others so the judge made a finding of fact aren't we reviewing that just for whether it's clearly erroneous your honor yes that would be the standard of that review of the trier of fact you're absolutely correct but we're trying to point out to the court is that the judge got it wrong on this points of discretion and let me point out one thing that the judge didn't even deal with properly and that is this internal policy the city has on its interpretation and forstmann of the four one five statute the city put forth in their record it's in fact on page thirty of their brief that these two elements when they determine whether someone's in violation of four one five and they say this was the person complaining and reasonable that was the right sound and you are reasonable that person that's the first prong and second when the person making the sound knew that they were too loud now i ask you how is it possible for someone even with a permit to know whether or not they had the intent to violate four one five if we follow in ray brown i'm under such a standard there's no deaths of a limitation in fact if someone had a permit  and i guess from the standpoint now not to be argumentative but there could be some sounds that would be so loud that you know whether they it's not doesn't require actual knowledge but right and in fact when the city tries to point out in their defense some similar groups that may have been started under four one five they may think sample someone who just was beating on drums for hours on end without really communicating a message but if we fall in ray brown which the defendants say we should and then they use this is their policy that the person that's hearing the sound so it's just says it's unreasonable to me and then the second prong of that test they say is their policy and applying for one five is the person making this now knows that are two loud how can anyone even get within their own frame how can i self regulate myself in my sound to know whether or not i'm through that in fact what they say is that it one time they came back the police came back and he said well now th sound was louder but it may not have been louder only because they were turning up water as you're turning a volume because someone is making a point as they do when they're preaching i'm rather now then i was a moment ago not because the clerk turned the volume up on this microphone but because i'm trying to emphasize a point and here we have the dilemma your honor there's nothing objective there and that's our greatest concern as a civil libertarian your honor i represent many governments across the country i write these ordinances i write these policies and one thing i try to emphasize over and over again when i'm representing government is this you must not leave the discretion to off from the street because we then have such difficulty as a court and this is attorneys to try to figure out what was in the mind of that person which is why the panel said previously you cannot try to rely upon the author's intent and that is truly where the judge below went wrong trying to say to these these people proving their case to trial that they had to prove the intent discriminatory intent even though the prior panels that they did not have to do that that creates a dilemma because there's no there is this is basically their house well yes well you keep it going back to the stay focused on that as opposed to what you think the prior panel and i and his fate that question from your honor and i would point out this response the evidence that they said that they would rely on in the prior panel was i'm not trying to forget that it was a summary judgment standard there but what i'm saying is the prior panel said if we let this evidence and if we consider that evidence of this on summary judgment here and if that was evidence that was brought into the trial when the evidence comes in at trial so you could argue over they want but as far as i'm concerned it's going to be more meaningful to me if you will talk about the actual evidence that was presented and we can read that we don't need to hear about that really thank you honor and i don't think it's not the best use if not let me address this point about the the issue of how they enforce it this is in the record it was shown at trial well i have a p d said this is what the officers are supposed to look at and you're saying i thought that that was an inadequate instruction to the officers of the kind with facial challenge that the instruction to the officers what it is it's showing the way they enforce it  and it must be in firm let me point out something about that and what was in the trial record it this is their admission that that's how they do it you could be cited in the hauled off to jail under four one five whether you had a permit or not under their policy under that internal policy find on page thirty or brief because even if you had the permit to be at a certain decibel level at a certain time of day at a certain zounds zone a venue wherever you are if one p person complaining says it's unreasonable of them and too if you somehow know the officer has to do this the officer has to say i know that they know that there are two out that's their policy there's no objectivity at all there your honor and that's harm here that's what i think that isn't fair to screen though in other words it's in the structure of the officer you need to do a couple of things here before you take the next step you're exactly right your honor and i would ask that there be a screen i would hope there would be a screen i got one then one of the things officer isn't going to go any further so looking at how reasonable the complaint under this is certainly a place to start is that right it would be yesterday and i agree with you i think there should be a screen you're on or you're totally right but how about a screen differently that's more objective that says well you've got a permit here to be at the certain just of a level that's been reviewed we know this loan gives that but under for under their analysis their internal policy of how they apply for and five it would even thought you were at seventy decibels then that would be something that would be considered in those questions because what we're talking about is the officer supposed to know whether the person would know they were in violation of someone whi permit to do exactly what they're doing i think that there's a good argument that the officer would say well how would you know you're doing anything wrong and that is exactly what happened in our case but it was in converse your  right that's correct but that's my point is that it's not relevant to their analysis you would think but i think it would be if in answering those questions if someone pulled out a permit permit i think it would be relevant and that  court could say you didn't have probable cause because the person charged you they had a permit to do exactly what they're doing and still even in this case under both situations which are in the record for you to review in one case the courts threw it out and the other case they just dropped the charges you see but i'm trying to make the most important point is this it doesn't matter whether you have a permit or not under the way the route they have this internal policy because there is no standard there i guess what i'm pointing out your honor judge nelson is this should wo inquiries that they're supposed to go through i'm sitting here saying that standard isn't adequate or it's not objective enough for any gathering but it's a standard to have it is a standard and in fact for one five used to be applied without any standards true until  court in ray brown said you need to say this you need to be able to show that the person has the intent to disturb someone and i'm just saying that if you're going to have a standard make it one that actually works instead of leaving it up to tossing up in the air on the street  a term and well i think that person thinks they're too loud and even on the issue of the complaints talking about outside of four one five let's talk about the complaints themselves and how they enforce the defendants don't argue that they do this on a complaint basis yet how is that when you look at the california constitutional argument which the court below we think didn't even touch on how is it that you can say that this group here can be there and they are all right to be there because in the california constitution analysis they don't interfere with the form but here this group is here and they get a complaint against them and somehow they are in violation of the california constitution two groups making the same amount of noise making the same expressions of sound trying to give a message which may be different yet this group is compatible with the four and this group is not we're not trying to say that in the california constitution there aren't things that would interfere with form but how is it possible even when you look at the record that we were able to put forth in the trial that this group can stay in this group cannot just the flip of the hat how is that i mean state the district court make that were against you on  and then got to the block of whether we'd shown discriminatory intent actually and that's where the nice because the panel this is that part is just a matter of law of case they said we didn't have to prove discriminatory intent the district court said we did over you we did put in evidence that there were complaints there was a business owner constantly complaining about one group that was out there and then those people never had any activity at all in force when taken against them again were the only people ever that were arrested inside under the noise violations only ones we're the only ones that are caught are quickly confiscated for a year and yet business owners complained about of the groups in this was in the trial record and yet those were left there that's something for you to look at and i think that's what was important for you to understand as far as you didn't over review when you see other groups there how is it they do not interfere with the forum and somehow we do under the california constitutional analysis and how is it possible that the judge could see it got to the point your honor where it got so tight that you had to prove this was the standard for us we had to show that we were there at exactly the same time another group was there not ten minutes later even someone who took a break while they were doing their sound they took a break for ten minutes and suddenly were cited during that break time and then he came back and they continued with their sound your honor it's just impossible for us to prove anything of discriminatory effect or intent when that's the standard we must meet it just can't be done this is what we're really wanting to the court understand with anything else these plaintiffs are people who have no vehicle to express the message they're there they're people of limited means and that's why the constitution is designed to provide these venues of opportunity and given the fact that they admit that they have and force these regulations on a complaint based manner that by itself opens up the door discretion and then the burden goes to them the burden goes to them and the question i would ask this court is to ask them what did you do what did you prove to show that you did not discriminate because the policy by complaint basis and force meant fosters discrimination it is then their burden to show that they had reason to not allow the discrimination to occur francisco it's one of the things the police department has to do regularly and it's something that is not a yes terribly important aspect of policing in the city but it does affect people's lives and it's something that they have to do the question raised in this case is whether the police department did so in an even handed manner and without regard to the content of plaintiff's message which the district court said they did and that was certainly not an  judgment trial we presented evidence that was not before the court in the last time we were up here and that evidence had to do with the general method that the general philosophy the police department takes with respect to enforce noise ordinances it had to do with housing the police department to other small groups either singing or speaking using amplified sound without a permit within the city and county of san francisco and what the evidence showed during trial w police departments in almost all circumstances leaves everyone alone even though they are using an unprecedented amplifier and that includes the plaintiffs the plaintiffs the testimony the trials the police are out there almost every friday night for ten years using an on committed amplifier which is against the law which is against the municipal code and the police leave them alone that's also the case with respect almost all of these other small musical groups throughout the city and county of san francisco basically unless there's a problem with them the police leave them alone and that's what happened with plaintiffs so in fact now once complaining about that when they're left alone no complaining about when they're left alone and again that was literally hundreds of times throughout the time period this case was going on hundreds of times so players are trying to focus on these very narrow and limited circumstances that were gone over and detail during the course of the trial and ignoring all of the evidence that in fact they were equally as the district court court put it unmolested they were they were out there without any a discriminatory reason for enforcing the law against the plaintiffs and i think compliance arguing that they were required to show one discriminatory intent by taking statement out of the district court and respond to that they're taking a statement out of the ninth circuit prior opinion and also that just a court opinion that they're required to show intends the case was very clear that in an before the ninth circuit for the summary judgment motion was granted on the basis that they hadn't shown a pattern and practice of constitutional violations that would entitle them to relief and so it was the opinion basically said look there's a lot of activity going on out there and we can't really tell at this point whether that you know there's a question of fact at this point whether these people two groups are treated equally and how that deals and how that affects the constitutional now if this was not entirely clear in my opinion and in the prior opinion but the point of the matter is that for an equal protection argument which is where the comparison is coming in it's very clear the law is very clear that it needs and both and if i can talk about the first amendment issue for a moment first of all there is no lack of standard as the core point out four fifty the testimony in this particular case about four fifteen was very clear that in the vast majority of circumstances the police don't independently determine that noise is loud or unreasonable or disturbing of anybody's peace san francisco police department in the vast majority of cases i mean the standard in the police department is a police officers peace cannot be disturbed period so the police officer can't just go out there and you know state to someone who's quietly mumbling to themselves on the street from a citizen that initiate police department action it does not initiate necessarily in a restaurant citation would initiate investigations and the police department goes out there and it says ok sound like this is the problem and we go and talk to this person and the police department is out there solving community problems that's what they do that's why they're out there on the streets that's why there's been officers and everything else in san francisco's the  the evidence presented to the district court and everything the circumstance here that's what occurred there was a warning and prior to the citation i can imagine that there would be situation again when that wasn't necessarily required but in this particular case that's true and it's confusion earlier on about what it was that they were actually doing out there but what how the evidence came in at trial is that in every single case everything ok where the plaintiffs were out there and were contacted by the police department they didn't have a permit they were in violation of a lot independent of the level or or the disturbing of the peace of noise that they were making so again this is the scenario the police officers get a complaint that some being too loud and disturbing the peace the police department goes out there they don't go out there in order to they don't want to cite or arrest people that's not their initial intent in going out there their intent and going out there to solve the noise problem in whatever way they can solve the noise problem and evidence a trial so that what they do is they got their say hey can you be a little quieter and not on almost all circumstances resolve the problem and that's true even  are at that moment in time in violation of the law so oftentimes sleep dep it's the evidence so sort of addressed the problem nationally by saying hey do you have you know addresses the actual clear violation that's going on do you have a permit and again the evidence is unclear whether they did that in every single situation that certainly they did that frequently and again it was of a method that the police department use to resolve the problem and it's only when the problem  resolved while we're on the case that the number of occasions the two cases that are really at issue in this particular case where the police department have to go farther and again they don't go out there with the intent of inforcing any particular law they go out there with the intent of investigating and in each of the circumstances that issue in this case but for one out there they saw that the plaintiffs were in violation of the the the requirement to have a permit but nonetheless they investigated they attempted to resolve the problem others that was not true of others and i'm not sure how were he was tying the argument but would you like to respond to that to multiple praised argument of his there are there was no evidence before the trial court about any other people using unpermitted loudspeakers out on the street who were actually arrested and cited but there was also know that no evidence before the trial court of anybody else who them to turn it down and these people got louder so there's no comparison there with respect to that there's no other group that can be similarly situated to that because we don't have the evidence that there was any other group similarly situated to and again the discretion of the police officers in this case is greatly controlled they have to have probable cause in order to do that and that's what it says on page thirty of our brief is that they have to have they have to do an independent investigation determine whether the noise is loud and on reasonable and whether they're peers to be an intent to vex harass or annoy and the district court went through a detailed factual analysis of the arrests that were primarily at issue in this case and made that finding and said look you know we understand that they're trying to say that we're treated differently because of our message but in fact the facts show and we make a factual finding that the reason for the arrest had nothing to do with the message or to in order to treat them differently or because we're trying to shut down all christian speech within the city and county of san francisco but rather be here in violation of law in the officers took reasonable action there's also lots of to other christian groups that they speak regularly and again the overwhelming evidence was that the plaintiffs themselves spend hours and days and countless times out there and don't get shut down even though almost all the officers who did testify in trial know who they are have seen them before and see them regularly but they leave them alone i tell ask you a question about scope of conduct in terms of i think that no matter what basically no matter what the scope was in this particular case to be included and our argument on the case was that one of the reasons they can prove their claim is there was no pattern and practice of intentional to relief but in order to get relief at all to the fundamental touchstone on which they can get relief is if they've proven a constitutional violation within the year period and and the district court addressed that and found that that was al d but there were those the specifics of those particular instances of post complaint whether they were actual independent violations is not at issue in this particular case your opponent open with the discussion of the one of the only things was the adequacy of the police department's internal policy which again was not tethered to anything much that i can feel would you like to respond at all to that  noises being disturbed so again it's not within the entire discretion of the police officer to say my piece is being disturbed and you're being too loud the second is that that the police then have to have probable cause to believe that th decision of the district court and find for the defendants manage their own appear to be further questions thank you for your argument thank you picking up on your discussion judge nelson we have in the record and it's started as far as the fall of this case that there was a prosecution under four one five when there was no complaint we show this on page eleven of our brief there was no complaint but the police report of the ins and the police report itself became the prosecution for a four one five other words the first prong that they say they follow wasn't even there and they say they only enforced when there's a complaint there were numerous times when the officers shut down our system our speech activities when there was no complaint at all in other words there was a bone to pick here i guess but that procedure my understanding is right there you know i understand the argument that you're making that i want to understand what that protocol is for so i think it's important if you're saying they didn't follow their protocol did they actually they now was the person cited yes violations you're saying the person was cited this incident became a prosecution or for one five there was never a complaint done they violate their own internal policy twentieth talking about i'm sorry what what where in the record can i see that what kind of a look at what you're talking about  exhibit fifteen c and twenty the and then there was instantly pour in the police report which was twenty and we show this in the transcript of pages nine hundred eighteen line five through page nine twenty nine there was discussion with the transfer of records well the point is this and i would want to some of the if i could enforcement and granting of permits was all over the math your honor it was it was here it was there it was just whatever they decide to do at the moment and then later on they would make up some reason why they would do something foresman activity or what would justify it but in the record itself shows that many times they enforce these regulations when there was never a complaint there was no complaint and they said you got to shut down and then they would slide them they would take their equipment away no one was treated the way these people were treated and yes the police have a record with them catching martell made a statement that he would never give them another permit over his dead body or he said something i'll be damned if you are in the permit they definitely limited their speech activity and under the california constitution i really wanted this time this last point out how can it possibly be reasonable or rational in any way shape or form to say that one group can stay there and continue their activity and one group cannot win the standard there is whether you're interfering with the forum go ahead and take all those groups out but don't just let ones day and then take the other one out as happened again and again and again with these people christ is not fair you are thank you for your argument this matter will last and submit it at this time