thank you your honors may please the court my name is mike ross and i represent the defendant appellants in this case and like to use my time to clarify some of the more important questions we have in this case and respond any questions your honor may have  stated that when properly applied qualified immunity protects all the plainly incompetent and those that knowingly violate the law here only let me just ask you this as you know since the briefing was filed in this case the supreme court handed down a white vs poly where they once again instructed the courts of appeal to get to a lower level of specificity in connection with our determination of whether or not qualified immunity is appropriate they specifically criticize the ninth circuit from time to time of being the too high a level of specificity so i would appreciate it at least for my part i measure my colleagues would feel the same way when you review the various aspects of your charges and there are a number of them if you would tell us what case or cases you believe are close enough to satisfy the requirements of white versus poly in terms of specificity in terms of specificity your honor i would say that the problem with this case though is that we don't have a case where we have a situation analogous to what unfolded that night and that that's that's what we're faced with are we not required under white versus poly to grant qualified immunity to the officers in that situation i think so i think i think we grant qualified immunity light most favorable to the plaintiff pelly you ask can there be a constitutional violations but step two is the more important inquiry here and that is you ask  was was the law clearly established to stay officer a reason officer would know what he or she is doing by a lead in the law well let's look at your first issue this is to the initial arrest it seems to me like there's pretty great law that this arrest has to be in good faith and reasonable would you agree yes you're right so if we put it in good faith and reasonable and that's the general law in this particular situation we've got prescott who was watching a person and or the residence from the backyard we got a radio too anderson to cover the front of the house we've got anderson who knows it's a white male knows the person is fleeing knows he's dressed in black shirt and tan pants at least that's what his deposition says and then he comes to the house and arrest this guy walking out the front of the house he doesn't have on a black shirt he doesn't have a tan pants he's old it doesn't really look like from the picture he would have been able to outrun the police or jump bushes and they arrest him what's in good faith and reasonable about that you know deputy anderson arrived at that same moment that mr sharp was coming out of the house i understand but nonetheless he knew it was a white male he knew he was fleeing he knew that he had the black shirt and the pan pants if i go where you want me to go it would seem to me that i have to suggest that it is reasonable and also good faith to simply arrest somebody because they're white no your honor this is what else is there which would give this policeman the opportunity to make this arrest first of all it's at night so the situation is different than than any other case that's been cited so it's a night time it's also a dynamic situation where you have the officer is a late arriving officer who had has been privy to all the facts the other officers had understand but he is privy to the facts that i've just talked about all right you're on it but but this guy is running and this guy is in black shirt and this guy is and then ten pants well your honor and it's two minutes later when he went in the back now it's coming out the front well your honor at night the tan pants and the shirt well we had a similar case to leave that where officers were chasing after a guy in the guy ran in to the house so they followed him and he went hid under a bed and they went down and arrest a different and in that case i don't know if that involved an arrest warrant or search warrant but in this case we had an arrest warrant d m v records probation response at all said that this person lived at that address it was a it was a perfect match that's all deputy anderson probation officer knew to the contrary did he not well the probation officer was told a couple weeks ago or a couple weeks before the incident that he was no longer living there however that there was no new information as to where he was that and apparently this is sharp it said he had gone to mexico but he was there that night so all that is new because he was actually there when they came the case i'm but i guess i'm just trying to i mean it seems to me that on this on these facts and on me thinking about all of this kind of stuff and i'm really measuring it down because i have to tie say good faith and i have to take reasonable notice and when i get those two and i look at what happened in this case i'm having a tough time saying that there is no clearly established law upon which the by the plaintiff wouldn't make it on the initial detention we're on our there's two steps with qualified i mean first step we've gotten there and that is whether or not there was a violation of the law well but the law that i cited you which is hill  california where they have probable cause to arrest we do relate to that case leads us to good faith and reasonable this so i'm having to determine whether there was good faith and reasonable notice in this particular case hill that didn't involve someone at night didn't involve a dynamic situation and involve the calm cool collected decision by the officers the two robbery suspects and actually implicated hill and they went to the the and it was a general description that the suspects gave they go to that same exact address and they find a guy meeting the general description in broad daylight and they arrest him and he'll come to california he said that was that was said my name is merit and then later married sharp when he first arrived at the house he detained him it was immediately after he detained him he asked for his name and he said mary was is was is before  after you believe the arrest occurred well it was pretty much simultaneous what the head even was in cuffs by that before he said my name is mary sharp that's unclear from the facts if he was actually in and did anderson know the name of the person that he was supposed to have for him coming out the front door was named merritt sharp i believe so because one of the records show there i mean he was not even assigned to this case he was just patrolling in the area and they said come so when they said come and watch for the front door did they say watch for the front door for many americans short sharp or not the record on that is unclear but we do know that  suspect was coming from for awakening about there and that's where he not well but the question is how much additional strength can be given to this arrest by the fact that the guy who was arrested had the name that that was known to have be on the arrest warrant but you're telling me that it's not clear that enters knew that name no your honor that wasn't something that we specifically spotlighted as being ok that's fine thank you your time expired counsel so seems to me there are two other issues where i have some problems one is on the continued detention after knowing he wasn't the right and the second is on the first of mehlman retaliat as to the continued detention it seems to me that in this particular matter he was kept for eighteen minutes after they knew absolutely knew that he wasn't the guy seems to me that clearly establish that continuing detention on an arrest warrant is not reasonable you're in michigan the summer states that a case which is not well it's one of our cases it isn't even published i've go to go to that case to make a reasonable approach to the law that we should apply the reasoning from our detention our skis we search warrants to arrest warrants well your honor the point is if we go to step one whether or not this was a constitutional violation your honour's  can disagree about whether or not it should be applied to arrest warrants or search warrants or if in this case i don't know that we have any right to disagree because cats god doesn't say anything about it but the question is whether it was clearly established in the was pretty straight an arrest warrant is different than a search warrant well the maryland we we use the we can use that what you're talking about there is a footnote that states that too right but no to which state here the quote starts here your rest warrant implied nothing about whether dangerous third parties were found because in that case the officers had argued well if we go in for an arrest warrant we should be able to search the premises we're not talking about a probation search which was which could have been the case here and the court said that the that the arrest warrant pli nothing about whether or not they should be able to search the entire premises of ask you about that because i wanted you to have a chance to respond the second is the first amendment retaliation claim i mean i read this first if you weren't so org being so argumentative i'd probably put you on the curb seems to me that ford is pretty smart john point well you are the the wall there is the fact the officers conduct would chill a person of ordinary firmness seems to me everybody agrees with that you don't even argue about that what you're really arguing is was a desire to chill speech was bought for cause of the adverse action exactly on he was detained not because of his speech and he was continued to change not because of the speech i guess i'm having a tough time understanding if you weren't so being so argumentative i'd probably just put you on the curb how that doesn't say the officers desire was about for cause of the action well the action that straightforward what he said well the action being a patrol car versus curb i'm not sure if that's a distinction without a difference he still detained he's still in police custody so the fact i mean ford was in a jail i understand wasn't that person right and once he was there my colleague has said is eighteen minutes or what if it was two hours is that acceptable you know your honor in that situation i wouldn't have all the facts in this situation  no you're armed but in that case you had a mistaken identity and protested and it was for three days in this case you have three different methods which the officer could have detained mr sharp that is mistaken identity close as you know some of these some are not as close as others what in your judgment are say the best two causes of action that you have or you think the case law is so close that you've met the white vs poly standard what are those and one of the cases that you would rely upon your honour's just with regard to the standard for qualified immunity that you're referring to in terms of it being defined at a high level specificity i just want to clarify that the court has also said that it can be clear in light of preexisting law now in terms of first of all the claims he mentioned that are that are the most mistake of identity it must be reasonable now the facts here which by the way some of them are disputed and those disputes ought to be resolved in our favor the facts here do suggest and i think the district court ruled properly that the se e was unreasonable based on these facts because for example he was wearing a different color shirt the suspect that was described to us anderson over the radio was a black shirt mr sharp wearing a light blue shirt tan pants mr sharp the third was wearing blue pants they said that he was feeling sharp three was walking towards the officers and of course if you can see on the supplement i suppose the record page one ninety one you can see a picture of marriage sharp and his son they look nothing like you agree that that officer enters and did or did not know the name of sure the person he was there to apprehend i off the top of my head i don't remember if he actually knew his name at the time no you don't mess with the record it's clear you're saying you don't know just off the top of my head i could refer to it and probably give you the only answer whether he knew his name but as far as a description of it was and what was happening that was something he definitely did have you heard that over the radio he was not privy to the there was a briefing session that they had before they want to serve the warrant the the other deputies where they you know interesting wasn't part of that discussion was he right he would know he was not part of that discussion he relied exclusively on the description of the suspect over the radio that he probably did not know the name of the suspect to my mind at that time you know i'm not sure if it was possible that he might have somehow gotten ahold of it by other means through some sort of search but i would need to look back through the records does it matter that here in terms of how quickly that acted and the lack of care it would not be sufficient to ameliorate what happened but certainly it would be relevant if any reasonable officer would want to consider what the suspect they're looking for has done in the past and  understand that you know i'm not suggesting that every you know law enforcement action is has to be unreasonable because i happen to be on this side but in this case what the warrant that they're serving appears to be because of a probation violation so you have a situation where the police are showing up to a house to serve warrants for a probation violation they're calling in the cavalry they're calling in the helicopters the canine unit they're running the jumping over the fence and you the testimony of deputy fluoresce she even admits that they were just intended to detain everybody now in this situation here under these facts i don't think any reasonable officer could say that they were acting within the law and that best case what's your next best conservation the next best would be i believe the well it's related i guess but the search of person for merit sharp third because that would be incident would be the next wrongest because of its relation to the first one but i would then say the first amendment claim considering considering these statements the admissions that the deputy made at the scene concerning him being kept in custody based off of him being i guess disagreeable and on a personal level to the officer and i believe he said  if you weren't being so argumentative you would have put him on the curb and that to me strikes me as an admission that it was his speech that was the motivating factor for keeping him in custody and not any sort of an objective concern for you know how long does he have under the case law to release him without having further problems to my mind there's a i believe it's i think it was a gonzales or something like that but there's a case that was i'd have to get the name for you but i can describe the relevant facts it said that when the officer has has to tame somebody and this is in the context of a traffic stop by the way that they can keep the  than necessary for purposes of that stop for them to cite them and to release them now be holding that that case has been cited for is that when you prolong the stop or the detention for for reasons that are unrelated to the initial reason for the stop and turn into you know an investigatory fishing expedition but argue that in this case that holding him once there was a mistaken identity that anything longer than that point on was on read at that point yes he's an innocent person he has not committed a crime in fact he's a supporter of law enforcement other reasons with the result of the curb or in the car exactly either way right now if for purposes of the officers executing the warrant it would be perfectly reasonable for them to say maybe you know don't interfere with that what they're trying to arrest his son which is that but that's not what happened what they did is they arrested the dad they kept him in custody and they didn't even put him on the curb and as you mentioned that also would still be a violation assuming he was not free to leave in those situations because he'd still be seized without reasonable suspicion or probable cause of criminality foot or crime having occurred ok i have a question for you if we're going to do the first amendment retaliation claim and come out on your side on clearly established law is for your best case forward versus yakima yes it stands out to me in terms of akers how council has differentiated forward distinguished forward saying it's not really a good case because to the how would you i would respond that you c and what it's saying and now we're looking at forward can that really be determinative given this new case from the supreme court i believe yes it can become because the the law as it stood at the time of  of those circumstances that you could not and i'm going to reference put it with reference to the facts at issue here you could not keep somebody in custody simply because they're being argumentative because if their speech  because him being argumentative presented a safety concern that's something that frankly i just don't buy it because people are intitled to be argumentative they're entitled to say what their opinion is and  in terms of an officer not liking the way they say it i believe the first amendment protects this this type of argumentative ness if you have an opinion about being on lawfully arrested or having your wife accosted or them going inside your house you don't really object to that they really can see that there was speech there i believe that way and the question was whether they took action which would be sufficient to chill a person of ordinary resolut the exercise of free speech that that is what the district court held and that i believe was the correct ruling because those that conduct the officers conduct in keeping him in custody because he was being argu then he would be to be forced to sit on the curb for another twenty minutes i'm sure that there are many things officer could have done that would have killed him more but i believe it's sufficient to show a person of ordinary firmness somebody who in other words somebody who is not uniquely predisposed to giving their opinion or withholding their opinion that type of conduct by the officer i believe would be sufficient in light of what's been is clearly established before and the other line of first amendment cases that would