the next case on our counter is douglas he can bottom eisley argue and the american society of news editors versus police officer curtis sylvester thank you good morning morning your honour's may please the court my name is jay goldberg i represent the plaintiff appellant douglas j higginbotham in this case granting summary judgment against  first and fourth amendment claims the core polow held all inferences of fact in favor of the motion proponent the court then improperly applied the law of the circuit in your circuit the problems of what should have properly been jury question i'd like to start with the cause is sufficient to defeat any progress or stopping of speech are you aware of that i am not and i apologize for not being as where it was it was just last week probable cause my first amendment rights work for bridge and i need to prevail it sounds very much your honor sounds like our case though it doesn't and i'll explain why in a moment but it sounds more to me like the muso case decided by this court the reason i think it doesn't is that because it's because there is a distinction that must be drawn between the first amendment analysis and the fourth amendment analysis in terms of probable cause the first amendment analysis  the court is where has a three prong test the middle part of that the second prong of that test being a question of the motivation of the actor that impeded the first amendment right musso this court held that whether a person was singled out for arrest based on the nature of his first amendment conduct was a jury question not amenable to summary judgment even the close of violated lucilla's told t a public meeting and that was arrested for this your fellow is arrested for not getting down from not getting down from a phone booth where the officer offers up the fact that he was concerned that he might fall off of it and injure somebody that's it officer sees someone who is disruptive tells them to stop doing it because what their conduct arguably violates the statute the whether the officer doesn't like the person out is irrelevant the office is able articulate objective grounds to arrest him i don't agree that that's correct in this case the whole let's explain library to a traffic stop the officer doesn't like someone who's driving a car and the person passes on a double solid line and the officer pulls him over because the person is passed on a double solid line rent says whether the officer like some or doesn't like him or has another reason to stop in missouri element does yes and i'm not taking issue with that nor my taking issue with the fact that if there is probable first amendment analysis the difference is really good there was a basis for arresting your client based on the danger that he posed to others by sitting standing up on a wet slippery top of a phone i do not agree with that i didn't i take issue with the fact that it was slippery i take issue with the fact that that allowed for probable cause but i'd like to address that in the fourth amendment and how judge leslie was first amendment analysis secure and now the there is i have a first amendment right to injure people no question about right but so is was it a violation of his first member rights to tell him to get off the the phone booth because he was because he presented a danger to other people the question he was it or wasn't it what it would be if that's what the officer did that's not what the complete ties the the the instruction by the individual who is not a law enforcement officer was not articulating a reasonable public safety just tell somebody sit down and then predicating arrest on that this is different the officer says get down him to stop presenting a danger to other people in that he did not tell him that you're wrong that is not correct the facts in this case are clear the record is clear and there is no dispute that no one at the scene articulated or thought the reckless endangerment charge the reckless endangerment charge was put forward in the first instance by defense counsel in this case in their motion for a twelve b six dismissal of the claim my position on this case is very conduct threatening statements being male is not protected at all interested in fabricate and the arrest was for an animal cruelty issue had nothing to do with the prior first amendment in this case he was arrested after some consideration for disorderly conduct i am saying to this court that to allow the bootstrapping of a legal construct a fiction if you will that takes advantage of the broad protections that the fourth amendment allows for police officers and then to bootstrap that into a first amendment analysis is incorrect the record the position of the point the blow  was always that the only reason he was singled out for this case for arrest in this case from all the other journalists in the area was because of his vantage point above the crowd that allowed him a singular better angle for viewing what  n you are a member of this panel what is the rule you want us to craft so that police officers do not ever again violate somebody has first amendment rights in a situation like this where a person is balance and i've seen a picture of this balancing up on top of a phone booth with a have re camera with a bunch of people around you that might be injured if he slipped and fell i believe that that becomes a jury question no they're no no no no what is the rule that we articulate so that officers are on notice that you cannot tell somebody with to intervene in such a situation without suffering some liability well there's a distinction between intervening and arresting i do not and i've never taken a position in this case that they could not ask him to come down you mean this case would not be brought if they hadn't arrested that's correct it is the arrest that's problematic limb off the top of that and he would not have a lawsuit you would agree that for having been interrupted if he had not been arrested he could have continued his first amendment activity he could have taken his camera into the scrum of the other reporters and done what they were doing that was holding it above their heads there would not have been a first amendment or a fourth amendment claim clearly so if a person poses a danger to let's say there's just joe citizen up there or not a member of the press getting a better vantage because you can see over the crowd he has binoculars he cannot be arrested believe you can if it is reasonable to believe that that person is posing a threat to those beloved then yes a danger a danger that meets the statutory definition of a potential serious physical injury might  arrested you can be and what's the difference between joe citizen with a sort of big heavy binoculars and your client who is up there with a heavy t v camera i believe that under these facts your honor the facts and circumstances for a fourth amendment analysis which showed that it was not a reasonable it's not a reasonable conclusion to believe that he first as a professional which the defendants could see that they knew at the time would present that danger that he would be in the position that he would be falling off plus their observations rounded fondant runs round to the top of a phone i can to contend judge that it's only at the edges where it slopes down i don't believe it's fully rounded it's flat on the top of the court looks of a for a one fifty four nay one fifty seven i think that shows it but there's also in the record the plants themselves for the phone booth which show that it goes sort of vertical i'm sorry but these these officers also saw him standing there for some of these officers rather saw him standing there for five minutes with no problem and did not intercede at that point it was only when he came down and then went back up and was on the top of the roof for another five minutes the only time they saw fit to intercede and ask him to come down was once the violence between the protesters and the police began if it was reasonable to believe that he was causing a danger or presenting a threat to the people below why was he allowed to stand up there for five minutes in the first instance why was he allowed to stand up there for five minutes in the second it's not really complaining that he wasn't arrested says no no i'm not complaining about that at all i'm indicating that that is a factor which could be properly considered by a jury as to the reasonableness of whether or not he presented a danger to those below and whether or not there was a proper basis for finding reckless endangerment not whether he argue that the officer was observing violence yes absolutely and again i believe that that should have been left to a jury there are factors in in this case showed that it was almost always i mean there's no disputes of fact here there's nothing for a  american society of news and other media and free speech organizations your honour's may please the court robert balan on behalf of the beaky judge paul i think you asked the right question what's the rule we should articulate we are asking in this case that this court join the first the third the fifth the seventh the ninth eleventh circuits and squarely hold that there is a first amendment right of the press and the public to record police activity in public subject to reasonable time place and manner restrictions we take no prisoners nothing to do with potential danger if you're up in a place where you don't belong and fall off and kill somebody with a forty pound camera hitting them your honor we take no position this court surely can determine that that wasn't a reasonable that that that was a reasonable time place and manner restriction this court can determine that that was probable cause this court could determine that it was arguable probable cause we have a much narrower brief your honor the point we are making is that this is a qualified immunity case and under the rules jurisprudential consideration that are unique to qualified immunity cases this court has the discretion and should exercise the discretion to once and for all address this very question is are for is arrested a different matter but why would we reach that why would we reach out to an issue that's not necessary to the decision of this case if we decided that there was probably cause or argument probably because on the issue of  you can't pick a perfect case when you have this issue you know and in fact you are also don't decide a case you don't decide an issue that's not necessary your case your colleagues gives up with you and your daughter and we don't get to pick our income  as well as in percent the the supreme court made it clear that in these kinds of cases precisely because if you keep saying that the issue has not been clearly established the day of decision never comes and that's exactly what we have in the second circuit and we have more than that we have a right to record depending on what judge's courtroom you walk into as you about that is that is is it is it your view that there's a wide variety of  half of the judges in the district court in the southern district are saying we're not going to address it because we don't think the issue the right of first amendment right to record is clearly established in the circuit that is the that we have a situation in this circuit that's pretty unique this is the publishing in the media capital the united states and yet we don't have a clear right to guide the press to gu hoelterhoff at least hold off on the decision until you hear from the supreme court on that decision because you might well find that the supreme court adopts the position that appellant's are making here what i what we urge is that regardless of how the supreme court does rule on that case that there is and you know it was justice kagan in the commercial case that i think really put her finger on it that precisely because of the way qualified immunity cases come up you have the situation where just as we're counsel god bless up there they make the argument it's not clearly established don't reach the first amendment issue and in the next case they're going to argue the same thing and she said the day of decision never comes and as a result in these kinds of cases she made it very clear we are giving the lower courts the ability to avoid avoid avoid constitutional avoidance if we can make one point in this case your honor that is it and i would say one last thing if i may every circuit court has adopted that approach the third circuit infields the first circuit in glick both of them held first that there was a first amendment right to report police officers in public and then went on to address the qualified immunity case and in fact in the third circuit think went on and said clearly established plaintiff in this case you lose but public we want to make sure we've we've declared all right the fifth circuit did the same thing they first held no qualified immunity or the excuse me there is qualified immunity because it wasn't clear circuit but precisely because this issue could continually arise it's in just the situation of qualified immunity the court went on to say that we need to adopt a rule for the future and going forward there was a first amendment right and i in the fifth circuit i appreciate there was a complication here probable cause it would be purely for us to see in this room because i explained why i would respectfully disagree with that him arrested so there's no there's no interdiction because of someone exercising a first amendment right there's a near rejection because of the disobedience of the officers order and then a return to the conduct which would presents arrest right the only place where i would disagree rather is it is inherent in the definition of the first amendment right that it's a right subject to reasonable time place imagine restrictions in the courts keep following us for that from us you bet be careful what you ask for because you got what you're going to do is you're going to have a say the police officers do have the right to arrest someone who's filming because they present a clear danger they're violating the criminal law i don't think we are asking for anything other than that you're out actually talking that's a faxes cases this is a suit of clothes only the cloth that's given the case is only the facts it's given we can make other scenarios and then say with i don't think we're asking for new york city corporation counsel good morning morning my name is alan rabbit's may please the court here on behalf of the three officers today i'll just start off by addressing the case that was just taken by the supreme court i am aware of it i'm not i have not read all of the papers in that case but the difference in that case from what the meek and also petitioners are asking for here is that the issue presented there is whether there is a right to be free from retaliatory arrest if the arrest is independently supported by probable cause they are that is the right in this case and this court has decided  already what the supreme court will do we don't know but for the second circuit that right has been decided and this court has said that you cannot avoid a probable cause or at pst just because you're declaration of a general first amendment rights record the police and public and well we don't dispute that there is a right and we don't say that mr higginbotham didn't have that right it's just not the issue presented in this case because this court has held that a probable cause to arrest for independent reasons and therefore it's different than the new so case where it wasn't  independent is a complete defense to a retaliatory arrest claim and therefore the analysis of both the fourth amendment and the first amendment claims in this case are the same because probable well i think what my point i'm sorry i'm not giving a yes or no answer but i think the point that i was making is that the the issue that they want you to decide is not the issue presented in this case presented in this case and therefore  it is would be this court recent change a constitutional issue when it's not necessary and it's not specified by the case because it's not necessary to the well perhaps it would look something more like what judge wesley already mentioned which is that he was filming and he was off stop filming and and then was arrested for not stopping trying to tie it more closely to this case but there would have to be some instruction to stop engaging in a first amendment activity i think that would certainly put it closer to putting that particular first amendment issue before the court but here he was on top of this phone booth the officers assessment was that it was a damp morning it could have been slippery he had thirty pounds of camera equipment on his shoulder and he could have slipped the phone booth had a curved top i believe it was a constant curve i don't think it was flat on the top from the pictures in the plans in the record but but the the fact of the matter is even if he was careful and he was a professional it doesn't mean that it was not reasonable for the officers to look at that situation and say if he slipped or lost his balance or whatever whether due to the structure he was on particularly his camera equipment to the crowd below and he felt he had a sharp edged cornered thirty pound camera and serious damage could have been done deal with the fact that the officers didn't seem interested in getting him until the crown got more u to get more aggressive and the police got there for more aggressive in controlling them that's when they were interested in stopping the film deal with them because that is the first amendment case the first point i'll make on that is that it's irrelevant because east officers are not required at the first second that there is probable cause to arrest to arrest someone and under this court precedent motivation is not a factor however that is the contention here but what's missing is what were the officers doing at that time were they paying attention to him did they assess the situation that's the allegation and it's not so clear from the record exactly what she changed at that moment i know they contend that it started getting more violent but without a fuller picture it's it's really hard to look at the record in this case is saying they need a jury to look at these films and through therapy the argument they're making they are saying that except for and that would be perhaps a good argument if it were down on his own to be told to stop nobody up right then he got back up and then he was told to stop and he concedes that when he was first told to stop he turned around and kept filming for the ignored the officer and then he was told at least five more times and it's all in the video that's part of the record to get down and then finally he started coming down and there were a lot of people around and it was a little chaotic the officers were helping him down and it was it was very chaotic and which which perhaps also led to the danger that was presented there  on qualified immunity from the officers also should when first of all if it's the right that they are trying to say about their rights record police and public whether having a retaliatory arrest claim if there is an independent probable cause i agree with judge pooler suggestion from earlier that i think it would be to in this case on because that is not necessary to the decision here and probable cause was independently of the supreme that yes that is but i would also say that this court should not in any way wait for the supreme court because even on probable cause i was sorry and qualified immunity grounds that a decision even in the in the other direction from the supreme court would not affect is not to be a first amendment right if the supreme court said that which is one of the issues that they've taken to see if the supreme court said that it would not affect the outcome of this case because that rule would not have been clearly established in the circuit and therefore the officers would have been reasonable in taking action that they took in thinking that they could arrest for probable cause despite the first except the probable cause i'm sorry i keep saying probable cause qualified immunity to is dependent on what is clearly established in this in a circuit at that time and even if the supreme court decides court to consider what judge castile said in denying the twelve b six motion by the defendants what he said was that a reasonable jury could find that the appellant here was removed from the booth soley soley because he had a better filming vantage point that analysis in terms of the first amendment right puts to rest i believe the argument that it's immaterial what their motivation was particularly in the case which perhaps he is but the he was that was not challenged in the motion for summary judgment still doesn't decide how we decide i understand and that's why i asked the court to take note of it rather than be balanced by it i know you're not bound by i also would say to this court in response that again our position is not that this was an independent action that the probable cause here is a fourth amendment legal construct that the basis for removing him and the first amendment analysis was an improper action to prevent him from filming at that vantage point the vantage point that only another police officer had that was the only person who prevent it i don't believe that the suit would lie under those circumstances i believe the failure to take action requires a specific rather than the general protection officers if they know that someone might be injured but they they know the person that that could be the  was appropriate for the officer tell me get down yes i always have ok maybe i can even have the twelve b six argument your point was in your earlier argument the problem what shouldn't have happened is he should have the right that's correct and oh it's only the he did and that's true and you can see in the video it's very clear he's told to get down by officer sylvester and another officer thirty seconds go by before captain taffy defender taffy comes over defending taffy tells him i believe either five or seven times to get down repeatedly get down get down get them get there within five seconds of defendant taffy telling him to get down he begins to get that what your honor said was they tell him to get down repeatedly and he  disobeyed their order and then they arrest the disobedience of an order to get down should not be the basis of an arrest if they made that determination that we are arresting him for you know there's a crime in new york for the disobedience of law arrested him or said ok let's just let it go there's i got enough things to worry about but the fact that he or she exercised their discretion to arrest him isn't is that somehow color the first amendment and elsa's does it if there is no it does not if there is in fact probable