outset that i intend to reserve about two minutes for you this case involves a disturbing the peace ordinance that as applied does not even require that anyone's piece be disturbed as applied all that is necessary is that sound be audible inside a building the district court actually use the word audible it doesn't matter how faintly that sound may be heard it doesn't even matter by whom the sound is heard this is a hell i don't see how you can if you can be heard inside the building then you violated the ordinance it doesn't it doesn't require any evidence any of that anyone's piece is actually disturbed the ordinance as written says that as applied law enforcement told on a number of occasions if you can be heard inside the building then you violated the ordinance that's simply not constitutional that's not narrowly tailored to serve any government interests and i would focused on particularly loud noises which can be heard inside the facility it is not attempted to prevent players from communicating their ideas but is focused only on plaintiff's activities which are particularly loud audible inside the clinic and more likely to disrupt the relaxed and relaxed helpful atmosphere in a medical facility so that's the factual finding now how do you deal with that  issue and for preliminary injunction the test is likely to prevail so he was he was simply a dop doing the preliminary injunction standard of are they likely to prove their case or not so in a trial he might have had to say they were disturbed but for preliminary injunction he's using the standard correctly about likely to prove that disrupted so what's wrong with all that there's no evidence in the record of kind that anyone inside the building ever heard ok so you're saying that that finding of fact was clearly erroneous was clearly erroneous it's not based on any get out and it was an abuse of discretion very tump tolerant in in a blog or an email or some some something that there was at least one family out there that heard him inside the clinic and therefore decided not to have an abortion so his own admission was that it not only was h inside but disrupted or changed a course of action that some of the patients clients were proceeding to follow obviously the plaintiff's intent here is to is to affect people that are that are going into the clinic and i don't think certainly in the clinic since loud noises can be heard inside the planning i'm sorry and apparently to affect them inside the clinic as well because of the finding by the district court these noises were heard inside the clinic again i don't think a facebook post by the plaintiff trying to to to support its own position that  we've we're accomplishing something here there's just not evidence that any firstly there was zero evidence even though your own client posted on a blog that he had persuaded somebody from inside the clinic to change their mind about an abortion because they heard  message well i don't think he had any evidence that anyone inside the building actually heard him and again even if even if there's evidence to be heard inside a building it automatically disturbs the peace that th s stated interest of the city here is to prevent loud and offensive no i know we've challenge that the ordinance on its face as well were they using that amplification system at times i don't i don't know if i can i mean when they preach anywhere in the city they use amplification because they're trying to be heard in the house how far away were they were only about twenty five feet away based on the video from from the entrance it's probably a bit more than that but they were they were out who clearly you would need amplification to be heard twenty five feet away outside to be heard inside inside to be heard just outside you would need them for twenty five feet and somebody is walking into the clinic in your toward the future way you can shout at them and be heard plainly without amplification well in cases such as this where we have preachers that are preaching over a long period of time that they will tell you that that the natural your natural voice become strained when you don't have amplification you can only preach for certain amount of time may may be true and prevail at trial but a preliminary injunction which is a disfavor d device why couldn't why was the court clearly wrong in saying that that amplification plus the person who changed their mind that you bragged about plus when the other evidence shows that this was disruptive inside the clinic and therefore it was disturbing the peace well again it it to be heard inside a building is not evidence that someone's piece was disturbed it's not evidence that sound is loud or offensive and that the district court and the city rely on the mats and case in matts and they had evidence from a doctor who worked inside the clinic that said patients who have to run the gauntlet of protesters their hypertension is raised and they have to apply additional sedative in order to be able to perform procedures there is no evidence of that here and even the city the evidence that they point to is a police report that says mr harmon  disturbed the business i guess was was was the term st of all again that's a police officer that's standing outside that has no statements no evidence from anyone inside that that that simply is  evidence that that someone inside her so i just i'm i'm a bit confused about what your as applied claim is it sounds to me like you're saying what happened that was wrong here is that the officers were preventing your clients from doing something that was allowed by the ordinance that they were they were going beyond the ordinance that to me sounds like they're violating the law or rather than applying the statute that in this context violates their st amendment rights so explain to me what it is that you're saying beyond the allegation that the officers were imposing requirements on your clients that guidance to law enforcement officers they're given discretion and they're given broad discretion and that's why the language of the ordinance that's something a facial challenge well after the ordinance no i would argue that as applied there exercising unbridled discretion to say what this vague language means as apply this is what's implied so if you're talking about as applied that don't you have to be saying that what they're doing is authorized by the ordinance as applied in that context is unconstitutional isn't that what an as applied challenge is as opposed to what i thought you were saying which is the applied it constitutionally by actually requiring that there be some disturbs instead they're saying if you can be heard inside you're automatically disturbing somebody's peace which is the language of the organs but they're bringing it to a  i guess what i'm saying is bye bye bye enforcing it to mean that as long as it sounded audible inside a building that that somehow unconstitutional and what are you saying that th occupants of the building have not complained about the noise the only evidence in the record that anyone inside ever complained was when someone heard screaming outside and it was not mr harmon or the gods and it was someone who is not a party to this case or or to this appeal there's no evidence in the record that anyone inside ever heard mr harmon or either of the datsuns in this case  disturbance and that you were prevented from speaking it it's our burden to show that we're likely to show that st st amendment protected speech in a public forum was  infringed and i would note that and we point this out and in the brief the government is always the burden is always on the government in st amendment cases to prove the constitutionality once we make bring the file she case which i argued we did it's the government's burden to show that the the their law is constitutional they have tried to shift that burden back to the plaintiffs in this case i submitted supplemental authority that you know you're asserting  your position are we challenge both the challenge the the ordinance on its face and i would also point out or facial challenge covers all of the language of the origins not just the sound course in this case the city is arguing this is all about volume and that only applies one particular provision you've never been charged the police have never threatened to enforce any of these other provisions of the ordinance against you if you're in the correct we don't have we don't was so on this record i don't see how you really can expand your challenge or you can have standing to explain your challenge to the rest of us who are of the ordinance i know you spent a lot of time on your brief dressing in but to me i don't see how none of the other one has ever threatened to be enforced against you how you've got any standing well general and so in a facial challenge that we're in we're entitled to put ourselves in the in the position of rd parties or not before the court even if because i love to go to court you can't do that you've got to show a personal investment in the issue and there's never been any suggestion that any provision other than that paragraph three has ever been attempted or threatened to be used against your plans well i don't know that law enforcement that specific when they when they enforce the ordinance they tell them they tell them you've got to stop all of that points to me the most important thing about this case is coming out of a request for a preliminary injunction you may be able to prove things you may not but right now you have a burden on preliminary injunction it's a disfavored process and the court has made some factual findings and i just don't know how you progress past that well it please the court my name is ricky joe knight in the nd it my co counsel jeannie snyder and i represent defendant city of norman and jeff robertson the factual issue that's being raised in this case that there seems to be some concern about is whether or not plaintiffs and their associates have been heard inside the abortion surgery center the record in this case includes a citation issued to mr harmon on march th of two thousand and sixteen that citation states that mr harmon was using a p system and disrupting the business a citation was issued by karl pendleton who is a police officer for the city that works off duty providing security to that abortion clinic jeff roberson also works off duty and provides security to that abortion clinic again that citation for mr pendleton occurred mr pendleton was inside the abortions or gracin or heard mr harmon outside using the amplified p a system came outside told him that's probably illegal he refused to stop the police were called when they showed up the allegations in that citation or mr harmon stop but once they left he continued using that amplified p a system again the video evidence submitted by the defendants include two videos which include instances of mr harmon using the p a system while he is outside the abortion surgery center and it's not difficult from those videos to come to the conclusion that he's making sound that's not enough to be heard inside the video evidence includes video number four which are what i believe to be plaintiff's associates specifically directing their comments to people inside the abortion surgery center there outside there yelling out if you are in there please come out video number five and six are instances where plaintiff's associates are using a megaphone a large megaphone and again addressing their comments to people inside the abortion surgery center and what's interesting with regard to that video evidence is in their petition plaintiffs allege that they are peaceful one on one sidewalk counselors but when you watch a lot of the video footage most of the instances where those amplified devices are being used there's no one in the parking lot there's no one to be talking to the only people that could be being talked to under those circumstances are people that are inside the abortion circus and under these circumstances and based on disc box will record the district court ruling that mr harmon and his associates again let me also mention that there's also a  that's correct the quote starts with inside out abortion clinic and that is the facebook message for mr harmon it's on pages eighty six through eighty eight of plaintiff's appendix so not only does mr harmon intend to preach lot enough to be making a noise they stop and make and they speculate as to whether or not that sound is loud enough to be heard inside a building and then under the circus they issue a citation what's interesting in this case is if you look upon this petition specifically with regard to the da that there really isn't any evidence on the record with regard to the datsuns again that's due in part because the allegations in plaintiff's petition with rove about things are very vague they don't really give defendants anough information to investigate the veracity of their claims again we've been threatened for many years well by who were to occur what time was was the location if you give me the location as with ms robinson and the issue with regard i believe that the person referred to generically in paragraph either fifty five or fifty six dollars appoints petition now that says that our associate was sighted in august two thousand and seventeen when we were able to search our record and investigate and be able to determine that miss robinson is probably that person she was protesting outside the abortion senator consider on an october two thousand and seventeen and we were able to locate that citation we have not been able to locate any other information with regard to the played fifteen of their brief baystate to follow this on this question was do demonstrate in this case when the city's officers including robertson applied the code to describe any sound heard inside so that to me indicates that it was not an error the district courts to include the harmony to the datsuns along with the behavior attributed to mr harmon and whoever plaintiff's associates  as to the as applied challenge you're saying it satisfies requirements or to read to overcome a facial challenge so what is your understanding of the as my understanding of the  in the difficulty with regard to this particular case again his point is allegations are very vague my understanding and what i think plaintiffs are trying to argue is the same argument made by the plaintiffs in this court decision  versus city of oklahoma city and in that case that was an issue with regard to jehovah's witness and the question was was just one of the plaintiffs in that case who were peaceful essentially simply distributing their literature was that a violation of the  was there evidence in the case which indicated that they were doing it in a manner that was disruptive so i thought this defendant's position would be that that argument assumes the underlying validity of that particular ordinance the question just becomes is it being applied in a manner that's unconstitutional i think the evidence in this case at least that the pulmonary junctions that indicates that it is not being applied in an unconstitutional manner specifically the video evidence that we submitted to the court video number  depicts an instance where someone complained i believe it was some patient that was a visit in the clinic complained with regard to plaintiff's activities the police were dispatched that location you see them go into the building you see them come out of the building you see them advised kind of similar sosias as long as you're not trespassing and making too much noise you're fine and there's nothing for us to do so even though point this petition indicates that there have been instances where they may have been peacefully protesting or at least they allege that in peacefully protesting or sidewalk counseling and threatened with the enforcement of section fifty three dollars the evidence in this case does not support those allegations again the evidence that we were able to locate with regard to quite a selective use has shown when they're protesting in a peaceful manner if they're sidewalk counseling and if it would admit on those videos there are many instances where plaintiffs are peacefully protesting on the sidewalk there's there is some information in those videos that indicates a big persuaded people on occasion to choose a different path there isn't any evidence in this case which indicates that under those circumstances when scientists are truly peacefully protesting outside of that clinic that they've been threatened with enforcement section fifty three dollars the only instances have been those instances when again of the noise that they're making is loud enough to be heard inside and to disturb the peace of another and again contrary to plaintiffs argument the instances when the ordinance has been enforced someone's peace has been disturbed or at least that's the allegation we both the citations that are in the record in this case the one issue to mr harmon one issue to ms robinson are are instances where someone alleged if their piece was being disturbed now as to the merely audible argument with regard to point us that something that's that term does not appear in the district court's order that term does not appear in the ordinance i don't know where that come from other than an attempt to try to manufacture information to argue that this ordinance unconstitutional but who was the target merely audible as a threshold matter what what has been advised as to how this woman's force if you're outside in the parking lot in your piece of the protesting and the people in the building can't hear you the fairness position would be as a matter of law you cannot be charged with disturbing the peace of another because they cannot hear you so as a threshold matter the finnis believe there has to be some information under this doctoral circumstances that someone in the building can hear you because again they can't hear you can't be disturbing the peace but then the addition to that is someone who's inside the building has to come forth and make the allegation th piece was being disturbed on that particular occasion and that's what the factual record shows with regard to how this particular ordinance has been enforced and what's interesting about that is again plaintiffs in their petition allege they've been threatened for many years yet the only evidence or the defendant's argument with regard to plaintiffs as applied claim is that this ordinance is not being enforced there's no evidence in the record to support a substantial likelihood that it's being enforced in an appropriate appropriate manner and therefore the district court's order with regard to plaintiffs as applied challenge should not be disturbed again plaintiffs also make a facial challenge again what's important for defendants with regard to playing a special challenges is that the supreme court has advised us that a facial challenge a strong medicine should be used by courts sparingly and only as a last resort and in this case the district court ruled that it was premature to conclude that section and we don't know what those words mean and therefore that must mean you will it's going to just focus on three isn't that still pretty vague with regard to three being bag i do not believe that that's the defendant's argument if another ordinance that three is narrowly tailored to a significant couple governmental interest to the interest identified by the district court was and that's that the way it's the way it's stated loud enough to upset other people in the rennet that could easily turn on additional force would take another thirty seconds studies and finish based on the evidence in a limited briefing in this case today the district for correct included correctly to concluded the point us are not entitled to put in their injunction because they failed to establish a group will give you admit it but thank you thank you thank you i would like to point out that we again raised an argument that the law enforcement officers exercised unbridled discretion the district or did not concern about the the difference between the facial challenge and the as applied challenge i don't think that we're i think we're entitled to argue in the alternative we challenge the ordinance on its face if in fact the ordinance constitutional then it's then it's applied unconstitutionally and we argue that in the alternative as to the datsuns i would point out this is a verified complaint at one point the city tries to argue that allegations in a complain are not sufficient this is a verif complaint so the statements are sworn so that's evidence they don't have evidence in the form of an affidavit or otherwise saying anything about the datsuns one way or the other thank you