counsel you may proceed thank you your honor pleases the court my name is robert franz i'm the attorney for the officers in this case it's a pleasure to be back and welcome all the students here back at my law school but it's more of a pleasure to be of frontage as this levy again i first appeared before you in one thousand nine hundred seventy three when i had just graduated from oregon and i had a motion with you and you  politely tore me apart over the hope i hope your demeanor is the same right the cutting right to the chase we have hartman versus more decided  april two thousand and six and of course hartmann was united states supreme court case that found if you have probable cause you cannot bring a first amendment retaliation claim and then we had reichl which was decided by the united states supreme court in two thousand and twelve and in that case the supreme court said that it was not clearly established that there is a need for probable cause in a retaliatory rest case in other words if you have probable cause to arrest a person they do not have a first amendment claim because it was not clearly established that that  law so simply stated and it's kind of important as to what the supreme court said in reichl and i want to read just quote it part here it says although the facts of hartmann involved only a retaliatory prosecution resume officers could have question whether the rule of heart when it also applied to arrest and then the supreme court said a reasonable official also could have interpreted hartman's rationale to apply to retaliatory arrests now it's interesting as to what has been taking place in the circuit after hartmann but simply stated in and fact this is from  massachusetts case how a judge an alibi and analyzed it the judge basically said if your arrest took place between two thousand and six and two thousand and twelve as a matter of law you're qualified immunity  and the reason being is because the supreme court said reasonable officers could come to the conclusion that hartmann did extend to retaliatory arrests now let's just take a look at the ninth  circuit and i'm not sure i'm pronouncing that the name correctly but scrooge s k old g was the was the first case and that was pre hartman and in that case at it said it's interesting it found qualified immunity but what the ninth circuit said in scrooged said at the time of the search the right we have just defined it was far from clearly established in this circuit or in the nation we have decided only today that a right exists to be free of police action for which retaliation is a but for cause even a probable cause exists for that action at some future point this right will become clearly established in the circuit and so they granted qualified immunity and that was two thousand and six pre hartman then we had ford the ford case which this circuit for the first time actually did say  there was probable cause for the rest but we're going to let it go to the jury because on the issue of retaliation in that case the officer himself arrested the motorists and he has a motorist by the side of the road to go to jury on a retaliatory arrest even those probable cause the one dissent in that case argued this and after you have taken somebody into custody for the arrest what they mouth off back to you is not protected now it would thirteen it was an arrest that took place to two thousand and six but it's still the time of the decisions coming out and in a cost of this circus said probable cause to defeat a first amendment retaliatory claim now  if it phrased it in the terms of qualified immunity what acosta was the person that appeared in front of a city council meeting and he was escorted out so recognized nor was there clearly established first amendment right to be free from or tao tory wrath that is otherwise supported by probable cause it is not clearly established ressort of by probable cause could give rise to first amendment violation and supreme court has held that it's not thirty savage's in two thousand and twelve and that a reasonable officer could interpret hartmann that way that because we're in that time period there has to be a qualified immunity especially in light of a casa now if you take a look at one of the interesting questions of the supreme court asked about the tenth circuit and reichel was can a clearly established right be established by one circuit now what's interesting is in the rifle case it basically argue it's a c v refers to every police officer so an interesting point is as of today eight circuits have found that it is stock clearly established so they because the supreme court says we've never recognized the right eight circuits have found it's not clearly established three circuits have found probable cause will defeat a first amendment claim there is only one circuit that is saying or implying that probable cause will not defeat a first amendment claim and that's the one thirty so i don't think that one circuit can establish a clearly established right on this issue because of all when the supreme court says so and i say they're relying on hartmann the century yes and the fact that rifle gave hartmann so much credibility and so the real question then the real question some point in time is going to be there or is there going to be a right in the supreme court is just going to have to make the decision there is a right probable cause does defeat a first name and fame or it does not so and then what makes this issue kind of right for you and right for anybody that wants to review this in this case that the district court found that there were probable cause in other words under the fourth amendment the search was supported by probable cause the arrest was supported by probable cause because remember under the fourth amendment to establish probable cause the subjective belief of the officers not important so that's how the circuits are getting with the mix that they're getting try a fourth amendment claim where subjective intent is not relevant and then you get to the first amendment were a subjective intent is kind of controlling everything i found it interesting also the district court in our case found that to be clearly established you just have to give fair notice to the officer that what he might be doing is wrong this is a pretty important rifle said it has to be beyond debate and remember in reichl where the supreme court is reviewing the other circuits to see whether or not it was clearly established that hartmann also extended to retaliatory wrath the supreme court took a look at the other circuits and found in they make the statement and i kind of copied the statement in my briefs they made the statement that judges are in the debate and dispute about whether it's clearly established how do you expect a police officer to be and that's kind of my same argument to this court what about the officer reading custard decision in two thousand and thirteen with this court held qualified immunity if there's probable cause if if panels of this circuit are confused how is the officers going to know what's the consigns search warrants and they're immune from liability but the police officer isn't as he should have known the search warrant was issued properly prosecutors are immune from liability for prosecuting people the officers are the officers are the only ones without legal training as attorneys yet all the burden is placed upon them and they're the ones being sued for the damage to our system it does not make sense under our system that you can commit a crime and that you can be a rested but as you're going to jail the guy could be filing a lawsuit against you for violation of the first of a person's first amendment rights if you don't want to be arrested don't commit a crime if you not provided me with the case file in brief so i must rely on his response already in the record however i am uniquely qualified to appear here today because i'm the only person in this room who witnessed the material malicious standard with a reasonable person standard to judge whether or not qualified immunity should be granted so in other words to reverse a district court and grant qualified immunity to the appellants would require this panel to determine whether or not the appellant appellants acted as reasonable persons who should have known that their conduct was not committed that please carefully consider that a reasonable person would have known based on his experience as a peace officer using an old fashioned term that there are usually two sides to every conflict reasonable person would have wondered what behavior on the part of my accuser might have motivated me to be recording and photographing him a reasonable person would have applied skepticism to the accusers claim to have slammed on his brakes swerved and passed all at the same time  a reasonable person would have gone to the scenes to look for skid marks to support the accusation a reasonable person would not have enhanced the reporting class b infraction of sudden stop or deceleration which is estimate one one point five hundred to the class a misdemeanor of reckless driving when there is no accident or proof of reckless driving and then added charge of reckless endangerment again when there is no actual collision already presumed my guilt me up cause him to want to see my evidence and now a reasonable person would have considered that if there had been a near collision that there would have been other calls to nine one one to report the dangerous driving but there were none and i know this because when i told him i was talking to my mom telling her about the arrest and so forth and i told her that there were no other calls to nine one one she said how do you know there weren't any other calls and i said mom because it didn't happen there wouldn't have been calls if nothing was to be reported so anyway a reasonable person would have acted with extreme caution to boys again arresting a person who they had arrested and charged due to false allegations just a few years earlier which they also failed to investigate before making  s so this this case began basically in one thousand nine hundred nine when i tried to file a complaint against a veteran county sheriff's sergeant i was arrested within minutes of that i was arrested a month later by the same sergeant i was arrested in january of two thousand and i was arrested in two thousand and three and interested in two thousand and ten all on false charges except the two thousand the arrest i put a video or it i'm sorry a tape recorder on my dash because i was pulled over for no apparent reason and i thought by putting the recorder in plain sight i was covered as qualified as notification that i was recording him but and i pled no contest to a violation in that case that the other cases there was the charges were not even filed in court or dropped before trial so so there is a long history ten year history of retaliatory pattern and practice of violating my civil rights because they don't like me because i declaration he he's he talks about receiving a report of the danger of a reckless vehicle was reported on highway ninety nine w the plate was registered to the plaintiffs david pick rate so right there he finds out who i am so that removes all reasonable actions are biased his probable process so then he goes on to describe what the complainant said and i'll just read from the bottom declaration he told me that he was driving southbound on highway ninety nine w near lewisburg when he noticed a late green toyota with license plate eel chii t r following him and taking pictures of him he saw the men in the toyota taking pictures of him with the camera held above the steering wheel the driver of the toyota was taking pictures while driving the man was also clipping off some freak and mouthing words as he drove home free was watching this in his rearview mirror and he was afraid of the vehicle following him so he pulled his vehicle to the side of the road to allow the other driver to pass the other driver did not immediately pass that finally did pass something the car and sped off no this is describing distracted driving first of all why is he looking in his rearview mirror at me what did he do to cause me to take video of him so that's kind of not mentioned at all by this accuser toyota got out of his vehicle and took pictures of humphrey now those are in the record and that's the first still photo no he said he told the officer that he was afraid of me but this photo shows him leaving out the window like if you don't need to be a ph d in anthropology to know that that's a provocative gesture that is not a person who is afraid so now here harry describes the actual alleged crime they began to drive again with a toyota in front of humphreys car the man in the green toyota then all of a sudden slammed on the brakes of the toyota bringing the toyota to a complete stop humphrey estimated the speed of the toyota to be thirty five to forty mph before it stopped completely humphrey had to slam on the brakes to his car due to this action and had to immediately swerve his car around the toyota to avoid an accident humphrey's car nearly hit the toilet at coming within an estimated six inches as soon as humphrey passed a green tell you into the toilet it started up again and drove up behind humphrey again no this is two lanes of traffic on highway ninety nine for fifteen or so in the afternoon both lanes are pulling out from a red light i was in the right hand lane out the he was in fear of imminent serious physical injury mr humphrey told me and now this part is in quote marks all the other narrative is not important mark but now here this is the quote marks of an eighteen year old macho guy instead of saying yeah yes absolutely he says quote when he slammed on his brakes i was in fear of serious injury close quote so that sounds like a lawyer responding so this is fabricated this is a lie to establish scope probable cause when all that was reported was an order s eight eleven point five hundred violation which never happened now the photo that you have in the record that shows humphrey making the provide could have just or also shows a school bus right behind him they didn't ask for my evidence that i told him i had the ask if i had it on me and i said no honestly because it was in my car they never asked the on that until they busted down my door with a battering ram by the way they left a search warrant in the car but they brought the battering ram busted down my door i told him right exactly where it was i had made a cd copy for the da he has pretrial evidence or i'm sorry pretrial discovery so i was willing to clear my name i had nothing to hide so then instead of looking at that video that those photographs and seeing a bus driver and getting the bus driver statement as i did they charged me with crimes which are of again were never filed in court so the bus driver statement is a fixed culpa torrie it contradicts what the witness told them and this all could have been avoided if they had only done an investigation which they refused to do because they wanted to get me because they had to settle a lawsuit in two thousand and seven for almost identical circumstances where a neighbor accused me of trespassing because he didn't know where the property line was so they came to my door at night without a warrant and they said they knocked on the door and they said well we want to talk to you i said you have a warrant they said i don't need a warrant so they started pounding and kicking the door now peyton versus new york and will spur his wisconsin says that they have to have a felony warrant and exit in circumstances for a nighttime arrest in the home so they're pounding on the door and it's cracking it's a cheap door and a rental unit so i called nine one one to try to get the state police out there for some adult supervision of course the dispatcher refused to connect me with the state police i ended up i opened the door so i wouldn't have a broken door and be arrested they arrested me and when they found out that there was no trespass at all did they have apologized no they charged me with improper use of nine one one you were picketing on the occasions when you were arrested rick and the report to the police was that someone was harassing you right is that right  i called i was picketing police what i believe was police misconduct by the corral of police in another case and a guy started harassing me and he was defending them and all that and i said do you understand about the first amendment the said well do you understand about the second amendment which i took as a threat that he was armed so i called and i never since i've been i was convicted of improper use of nine one one so i've never i'll never call nine one one and the rest of my life it is fact i called yes and they they harassed me they said well what's it say on the fine i said that doesn't matter what it says on the si protesting so they refuse and i and i hung up on them i think and so then the other guy apparently called and nuts were the two officers came out and then i tried to just go away and you know get out of there  and they followed me and detained me and by that time the arrived by the time the police arrived in response to your call the person that you were complaining about had departed the scene i don't know if that was a block away from where they actually arrested me i just kind of walked away in corvallis there's been a long running anti war protest in front of the courthouse so i was training go down to where they were so i had some witnesses around enter stand it where the person not only is accused of retaliatory arrest but also make the arrest not only on probable cause that the policeman determined that he or she that coupled with advice from a deputy da telling him yes you have probable cause and that's our case here well your honor i'm glad you asked that question because first of all there's no declaration from the assistant district attorney in the record so i don't know if that's fabricated or not the interesting point is that he got one side of the story from an eighteen year old nonresident now i have tires on my car that have more experience on the highway then this guy did but now i'm sorry so soon they didn't talk to me to get my side of the story as i said there are two oregon where we're supposed to have constitutional rights and i never got due process under the fifth and fourteenth amendment because there are never charges filed in court yet the district court has found me guilty of those charges which i didn't do and i can prove i have a statement from the bus driver that contradicts the charge of so you know i'm totally innocent i'm the victim of an eighteen year old who was afraid of me reporting his own reckless picture back at mr humphrey you can see mr humphries on the phone with nine one one the nine one one transcript and tape has been prepped produced and evidence so you have the live hearing of mr humphrey as he's driving on the road and you have his voice and for example he's talking to the dispatcher he says i'm still i'm ninety nine i just passed oh what is that oh man oh jesus christ told us that the dispatcher says what color vehicle does he have how preset it's green it's a green truck and then you know what is faster says ok we know the person have three says he's trying he's trying to dispatchers says he's trying what's or i just got past him all right so he just hit the brakes while i was directly behind him i almost rear ended him so we have actually what humphrey said they never took the deposition of humphrey to contradict anything that that said humphrey told me and they never took the deposition of the da to dispute the issue that humphrey i mean that the officers did talk to the district attorney there's a facts are undisputed you could listen to the tape yourself and you would come to the conclusion that there is probable cause when you combine it with what humphreys told that but which is undisputed and so that's why when i said this is a perfect case for probable cause is because there is probable cause even if you were to review that the noble and of course second of all there's no cross appeal that on the issue of probable cause this in a lock free appeal would have had jurisdiction for across appeal on the issue of probable cause because that's one of the issues before this court so because there's no cross appeal on that  issue probable cause that was established by the district court judge stands and i and i it was interesting to me that the district court judge did say a week probable cause that's based upon a decision the debt the debt for each decision here of the ninth circuit where they're now starting to go weak probable cause strong retaliation how can you have weak probable cause you either have probable cause or you don't have a problem and so our position is that i don't understand this weakness when you have an eyewitness and the beauty about this case it's not like the ford case where the credibility of officers involved it's the credibility of the officer that you ran the red light that i went  you that i talked to you that's the credibility officer here the credibility of humphry because all we're doing is taking a citizen who's involved in road rage his statement so that's even another reason that if you took a baby step and said well maybe or maybe we some point in time would decide that probable cause it's won't defeat a first amendment claim but what we are recognizing that when probable cause is based upon the credibility of a third party and not the credibility of the officer that probable cause will defeat any first amendment claim and then lastly when the officers were going to mr park raised house to arrest them and mr for craig called into the dispatch they knew he was down there picketing that's the only reason we went down there to arrest him where he was picketing is because he called and then you will see from the report that when they did approach mr parker a few start point in their face and then he said i'm not talking anymore so the two sides of story he didn't want to give his side thank you very much an issue has some questions no questions thank you counsel in the case just your good will be submitted for decision