please the court michael morris and i'm a half a plaintiff gary blankenhorn and i'd like to reserve five minutes of time for bottle arguments and unless this court is interested in discussing other issues i plan to spend the majority of my time discussing why defendants if they lacked probable cause as a matter of law the force used was unreasonable as this court decided in p v versus caution any force which is unnecessary is excessive force and again that holding was made five years prior in felix that would be our argument in his case because again there's no reasonable stake here with me to the probable cause perhaps if there was some reasonable mistake in arresting mr blanket horn and then they used a minimal amount of force you can make those arguments reply upon the supreme court doctrine and other cases which state that but there is no probable cause here it's obvious there was improbable cause and if i can run through the facts i'm all make that case this or blankenhorn said he came to the block under oath to socialize he asked the officer does he have any more questions and the officer doesn't respond and mr blankenhorn tries to leave and it's the officer who prevents mr blankenhorn from leaving by grabbing hold of the shirt and threatening him with m right in fact it's the officers of the state of the sequence of events they stop or they hold them there they get the security they ask the security do you want him arrested and then they arrest them so that's the sequence of events right correct ok so he thinks he's seen them before they get identification there's a dispute over whether they ask he gives or whatever but anyway the driver's license lands there on the ground they go they check it out they find out he's the mr do not  is six so to jay corrections entering the property with the intent to injure property rights or interfere up struck the lawful business activity of the block there was absolutely no evidence of that now if you accept the citizen least to me that's the trouble some issue in the case if the security guard finds out that he's under one of these do not trespass orders and he's coming on to the property to well the one where you don't have to ask them not to come back forget that statute because they didn't tell him to leave or anything the problem is is that exact actual scenario was before the south california supreme court as far back as one nine hundred seventy leave and you can't come back if you intend to gauge that same activity well they do come back and they do gauging that same activity and the southwest supreme court said there is no evidence in that case of an intent to interfere with property rights or struck lawful business activity you cannot infer an intent to obstruct lawful business activity or injure property rights really because you were told to leave at one point which was four months prior and he comes back that would be absurd if you can infer such an intent based upon those facts alone and there are no popular don't get any cases that say that the california supreme court has rejected it the same argument could have been made in hamburg versus wal mart stores where the secure the store manager was like hurting from his duties to deal with the kids covers all of those in the area actually because they're just looking at them wallace whether or not there was evidence of the intact and they found that there was no evidence of intent and that's the california supreme court that us law there's whining about everyone you don't get to make mistakes of as long as that that mistake was contemplated at the time of the arrest now there was it something that was that if you saw the officers reasonably believe that there was a violation of six o two j which is on reasonable in right of the california supreme court decision and that's that's the main point i mean thing is in re wallace hamburg versus wal mart stores make it clear that this is not sufficient evidence and it would be absolutely i'm sorry was that exactly and you got that's the exactly they don't know and you're seeing the troubling aspect of this case they don't write him leave they threaten with mayes they hold onto a shirt to keep them there they went out of their way to get this guy arrested and i something a court has issued that says the many step on this property that we told you not to step on you can get arrested this is something concocted by block security and by the police and if you look at the plain language of the statute technically speaking  by counsel for plaintiff which is the you have this with the homeless individuals that may come to a gas station or may frequent a gas station each and every time they go to that gas station if you want a conviction or six oaks you know they have the refused to leave if there's not new stuff officer and then the police officer goes to the individual but other than that the individual then will have to ask mr blank aronowitz both and if that would be the case that i relied upon and also in james for the city of long beach even though it was an officer that tells in the lead there was a prior van of this individual from the ballpark and yes it's the subsequent kind of placing the qualified immunity that i would rely on the buyer case in buyer the op the defendants tried to raise an argument about an interpretation of a restraining order that they never bother to read and what this court said was you don't get to qualified immunity for a mistake you didn't contemplate you never read the restraining order at the time this occurred so you couldn't have been confused about the meaning of a certain prisoner provision in that restraining you gross i mean this is different in effect they had a shopping center restraining order and they were saying you shouldn't be here because of the shopping center restraining order i don't consider it a training or i mean that's why i'm calling it a shopping center restraining order it's not a court order a shopping center and you know sort of proviso where everyone comment so they think that was the basis on which they were arresting he's going to do something that strikes activity that's what they're thinking at the time absolutely absolutely i just making the point extent there is some confusion about six so if you were possible six zero two zero zero zero it's not something that anyone thought of the time they're arresting mr blankenhorn and that was the only point i'm trying to make you want jersey the baggy pants and his race latino my name is lois both back and i'm here on behalf of the defendants in a pelleas to address i'm just a king's comment first and that is that there's no allegation in this case of a racial bias certainly no evidence was presented at the district court level about any racial bias so i don't think that that is an issue in this case with regard to the question of probable cause i would agree with counsel for mr blankenhorn to this extent that when the officers when sergeant gray first observed mr blankenhorn at the block he subject he knew that mr blankenhorn had been barred from the block he was present the night that the notice not to return was issued to mr blankenhorn and the whole purpose of the detention was to confirm that fact through security and when he went absolutely in hindsight that might have been the best way to resolve this issue but there's no constitutional requirement that the police or private sector are no your honor i would i would disagree with you there is a statutory requirement if zero and in fact in the in the that's what the prosecutor charged him with but that's not what he was arrested for  it's not relevant to the question of whether the police had probable cause to arrest him on the night that he was arrested because with so if you're saying he wasn't can't fall under oath at least at that moment and then for what we know will things go down the road with friends  property without the consent of the owner that was not charged and it wasn't argued in the papers but to the extent that i think the court can now look at the facts and say well is there probable cause for an arrest under any of the statutory bases argued it is a legal question and i apologize for not raising it sooner i frankly didn't notice it until i was preparing for all arguments and says entering an occupying real property or structures of any kind without the consent of the owner the holding of the wallace decision wallace was in fact very in a very narrow decision and the decision says we're dressing a very narrow issue in wallace the security officer arrested the  protesters on the specific theory that the protesters were were blocking access to up to a sidewalk but not really a sidewalk but to an exhibition area and that was the  the the protesters continued with their activities and the arresting officer the security officer arrested and arrested him arrested them and they were charged with violation of six have two the six are today the question in front of the court was whether there was sufficient evidence presented at trial to sustain that conviction the question wasn't whether there was probable cause for the initial arrest the question was whether there was sufficient evidence to support the  judgment and the court pointed out california courts pointed out that the security officer at mit that from what he could tell the protesters weren't actually blocking anybody from seeing the exhibition they could walk around and they weren't taking up any space that a family of four from iowa that were looking at the same exhibit wouldn't be taking  every property owner and every bit of the question isn't whether or not the officers could prove beyond a reasonable doubt that mr glegg right whether there was a fair suspicion every property owner in california and i would submit every property owner across the nation one of the incidents of property ownership is the right to exclude individuals from your property that you don't want on your property now improving your art and i  immaterial because you there's two things you could do you could come on there when they didn't want you on there or you could maybe they want you on there but if you come on you shouldn't obstruct you shouldn't you know have a riot on their property so  being on my property or coming on my property with the intent of obstructing my business those are two entirely separate things if the if the store if the mall had a property right to exclude people from their property and every property owner in the in the united states it's an instant it's one of the bundles of right that everybody has when they own property the right to exclude people there is an exception for first amendment activities under california law but mr blankenhorn wasn't engaging in core first amendment activities he was just hanging out with his friends and opening the girls i don't other than to say that the only prune yard created an exception to the general rule pruning yard said that other than reasonable time place and manner regulations property the free speech rights of individuals takes precedence over the right of property owners to exclude people from their property so i guess i would rely on intentionally came back to the property knowing that he wasn't welcome he purposely interfered with their property rights where at least that's what a reasonably prudent police officer could have believed and  that's correct your honor but i would submit that a reasonable police officer maybe you're going to tell us that their interpretation was wrong but i don't think that it was a reasonable interpretation on the night that mr blankenhorn was arrested he had been specifically directed that he wasn't welcome at the block the owners of the block had a property right to exclude him he came onto the property in disregard of that property right that's an interference where a reasonable police officer could have concluded that that was an interference with that property when it is asking about the statute because we're kind of think it's are you saying he was there interfering were was there for the purpose of injuring a property that injures the property your injury is simply being there the injury is simply being there after having been told not to come back because it injures the it injures the right of the owners of the block to control who comes onto contention that there were kicks by any of the officers i don't believe that supports that there were any punches to the head or anything i think what it what it shows at most is some punches to the midsection under the circumstances when when police officers are taking an individual into custody and that individual is not cooperating i don't believe that it is constitutionally excessive to jab somebody a couple of times in the midsection because they were hitting him in the face it would be a different question but to jab somebody in the midsection with the intent of causing the distracting them or causing them some you know some pain so that they will release their arms so that the arm can be brought behind them to handcuff i don't think that that's constantly says he's being arrested and now he's being because they have a little these papers that you're not supposed to be here that's what's being arrested for and at this point he's you might have been rude but he's put up no fight he's done nothing threatening correct well there's disputed evidence on  aggression against the police at least until the police began the process of taking into custody said put your hands behind your back they're arresting you i believe they said put out a put get in get down on your knees and put your hands behind your back we're arresting  as long as it's not constitutionally excessive in the law and as long as there is no case law that tells them that it is clearly constitutionally excessive now believe that there's any case law that's been cited to the court that suggests that telling somebody that you want to arrest to get something not being a general practice does not make it unconstitutional i can imagine a situation where it would be constitutionally and permissible if you're talking about somebody's short pants and you go to a sidewalk that is very very hot or that has bits of gra monitor that has bits of ground glass on it and you're asking them to get down on their knees and there may be some some potential for injury but that's not the case here mr blankenhorn had clearly been belligerent he'd been shouting he'd been gesturing to the crowd that's obvious on the on the on the videotape the police wanted to make sure that the arrest when the smoothly as possible and asking him he's a big guy he was bigger than any of the officers present with the exception of ross who appeared late in the game asking him to get down on his knees because they hoped that by doing that they would avoid exactly the kind of situation that occurred is not hungry suitable under all of the circumstances given what they knew about his  he's gesturing with his arms he's admitting that he swearing and shouting back once then he's in the middle of the palm tree most of the time he moves up and moves up to the security officer he moves up to the police and the police are standing very calmly no i believe that arkan addresses that issue in the arvin decision there was a motion to dismiss and the trial court granted a motion to dismiss the unlawful arrest claims of presumably finding as a matter of law that there was probable cause to arrest and then the question of excessive force went to summary judgment yes the question of i think it gets back to the question of whether or not whether or not a reasonable police officer knowing what all knowing all of the all of the facts and circumstances surrounding the arrest th follow that way then the question is but you're saying you could have you still could would have would be able to drop the excessive force i'd argue under qualified immunity i think that you know i think that if you're not using objective and reasonable force the fact that it's later determined that there was no probable cause should not mean that it is it is as a matter of law etc why why do we need probable cause to begin with well because he's making an reasonable officer knowing what reasonably prudent officers would know in the field i could believe that they had probable cause to arrest then i don't think that the they're only required to understand and know what the current state of the law is and to have some understanding of whether their actions clearly violate established law and if the law isn't yet clearly established because no court has said gee we don't believe that under six o two k that you don't have to have a license plate in the front that you do in the back and he pull somebody over for not having a license plate in the front then i think that you could make a colorable argument that the officers to title to qualified immunity just because he wasn't quite sure how the statute was to be interpreted particularly if there was case law on point that said that said convictions are being overturned because you're arresting people for not having a license plate in the front and that's not the the appropriate standard but there's no case letters no california case on there's no federal case father put the case directly on point and the arrest even offered to show he had the case with and he said officers let me show you the case i have it right here in my briefcase in the officers refused to look at it that's very far from the facts of this case thank you thank you very much fro record that haven't been cited the first case is people vs brown two thirty six cal absolutely suck nine fifteen in that case they come to the bank with the civic purpose of interfering with bank transactions because they're protesting the bank hiring practices so they go to the front they start counting out coins they do all these things so other people can't get to the tolerance another case in re ball twenty three callout three eighty three eighty again there's something active the person came to by the court which says there was no evidence for it and it had the same in hamburg hamburg what wasn't asked to leave but it was the argument that security guards being diverted to deal with the for of the defendant ok what if what if we disagree with you and say well it's not clear from wallace and soon the question is were there the officers could have believed that the first part of j it's not injuring the property it's injuring a property right and one would think there aren't if you if you have to it's entering a land and you will injure a that i mean it's not a lean situation which robbers could injure a property right but this is very specific as you have to enter and you and your property or property rights so i guess my question is what what does that mean property what could you enter upon and injure in terms of the property right i mean it could be an error right supposedly i suppose but i mean i don't think you can you know right because what in my wall says is that every person has entitled to occupy a certain amount of space when they're on a property so if that's what doesn't mean the shopping center has all the air rights over it you know and so you go in and it doesn't obstruct anything that you you know put on look a little mini air show right up there right over their property you start releasing little things that are going circling around me a little i think if you go into a property and use some sort of commercial activity or do some other show which takes away from what the purpose i think that's actually what they probably means exactly right someone like this comes on the property and somehow wants to interfere with the transfer of the property or the owners yeah right well so they could interfere with transfer they try to sell the discrimination once everything else i can keep out whoever i want and i you come back why haven't you injured my property right which is a right to exclude it doesn't it doesn't sound like an injury i mean what's the actual interest of the proper but the force used thereafter soley based on his refusal to get on his knees without a warning that they're going to use force and then after they tackled the game to the ground and he claims he's not fighting with them to be handcuffed then they punch him three times