finding one met spirit one had no injury but it overlooked pastor hall extends to money that he seeks recovery for spare ones expenses that it expanded going in his trip to our trip to little rock back to speak up and please tell me what issue you're talking about starting with the two standing issues that are an appeal one has to do with the trial court saying spirit one had no injury because it had no l are we talking about the ordinance challenge or the statute challenge both now what is and i can understand from the briefs what is the relationship between the ordinance assembly problem and the arrests well for violating the permit ordinance so that brought us to challenge the permit ordinance because also the record shows he says he'll keep making those threats about using the permit ordinance but then they were  two and a half hours was this alleged threat made he says he made it to them right when he arrested them right before he arrested them how is his testimony so that's one thing though he is spirit one recovering for it's expenses because a the permit ordinance was used as a threat b because the arrests cut short the of the outreach this was a little gathering of six people in front of the abortion clinic to pray and hold symes they apply for a permit no they didn't they actually were told they didn't need one that's why the officer him they were told before they even started the whole outreach that if i were to people at the office of the city where you get your permit if you have any names or positions what we draw we actually dropped that part of the claim because the statute or the permit ordinance for just a public assembly originally had no minimum on how many people were required for getting a permit we dropped that whole claim now the claim has to do with ok let's say you qualify in required to get a permit you have to meet these seven requirements well all those seven requirements are qualified by certain words that only the city can define because the permit ordinance doesn't define them so for that permit  and and you don't even know the meaning of the words in the permit ordinance because they aren't defined and they leave discretion out what's your best permit case where there's zero or there's no reason it's just it's just well the plain dealer case we cited the per case the risk being court cases the have allowed a lot less wiggle room to the city and then the little rock ordinance gives little rock and gosh one of them the what i remember about that is that they they required parade people to just at least put up an indemnity quote satisfactory to the city and that was struck down you can't even use the word satisfactory to the city let alone on the on the plain dealer case i can't tell you right this second what those limits were that were struck down but here we had a list of seven underlying terms is what your united states supreme court just but that's the gist of the standing claim is because if you can't even tell what the permit requires then obviously you're subjecting yourself to some by a way sharon without the due process and that puts a chill which is in the record with our people's affidavits that that's the effect they can't plan another outreach if they don't even know what the rules are these are cases where there the trial court actually get over all of that in an even rule on the thing because she just said we didn't have standing and i can supply the record cites not jumping out at me right the second if i could move on popped possibly to the disorderly conduct statute we had three levels of complaint about it paragraph two prohibits unreasonable or excessive noise in the trial court it overlooked this eighth circuit decision in  kind of the district court back then and nebraska had already struck down that statute and the supreme court in nebraska already questioned it and then there was a whole host of other cases cited by the eighth circuit that well look unreasonable noise has always for ever been beg that we're inviting words during an airport seizure bufkin so i mean couldn't be more factually unrelated to this case excuse me your honor there was a whole section on fighting words but the other ruling had to do with unreasonable noise because she was arrested for both the court held she was arrested for both and it was unreasonable for about because obviously you can call an officer names and that's not going to the words but it also held that unreasonable noise had been forever and there was no qualified immunity for the arrest on either basis or that's the way i read it in this case the trial court also overlooked testimony that the words unreasonable noise by the city on thirty six i mean whatever the officer says it means a that goes to selective enforcement be it goes to the person's not knowing well what's on reasonable c it goes to the fact that if i don't under i don't like the very probative evidence i mean well it's the city's test you know this is a facial challenge right yet that's what the city says they interpret it to mean anything the officer says it means and the thing is what your cite for that that was the disjoint appendix one fifty two and by the way they have discretion in that testimony to say that it means impedes or slows down well the language in the statute is obstructs so agree with that entirely but that's what the officer did because if you read the testimony it's he saw them obstructing and we have affidavits in the record that the trial court overlooked saying there was no men's right for inconvenience annoyance or alarm that our affidavits in the record that the trial court overlooked so that goes to what i mean what's the basis for the for assertion that the city ignores the plain meaning of the of of the statute challenges to the statute yes the challenges to three parts of the statute this inconvenience annoyance or alarm the obstruct traffic and the unreasonable noise we cite buchan's that that was clearly established law in  stall opinion makes clear the that the the difficulty of applying a word such as annoyance is not is not unconstitutional if if there is a if there is if it's not in terminal what's being what the conduct is and that's where the mens rea a comes in it's not if you're annoying somebody else i can arrest you it's if you're intending to annoy someone else except with excessive noise or by obstructing and that's that's the critical difference that you're you're attempting to bifurcate out of the equation well i'm really not trying to do that the seventh circuit did strike down those that phrase that's a popular phrase and we cited the key for cheating versus bell case that's struck down at exactly that phrase stall is our controlling authority counsel right and it's matter of fact on that point your honor the district court held that yes even the disorderly conduct statute relies on third parties for determining if there was a by lation that was the problem and stall and here the district court even said yes that was district court not the district court in this case that's the sr court judge maker said yes it relies in part on the reactions of third parties because it requires you to figure out if you benoit somebody and so have to have the intent to annoy well right that that wasn't the reason officer said critical that's the constitutional well seen the officers arrest when he told them that they were being arrested for being annoying not intending to annoy and for not having a permit he should have said well i'm resting you because you're intending to you're crying a different case than i read in the br the briefs the briefs taught me that after two and a half hours what's his name turned over reached over and turned up the mike so the officer i think it was alan a bot could hear it from a block away and the businesses were complaining about that well that was disputed a number one the businesses both said they continued to do business and that isn't a violation of the law the law is obstructs traffic or makes an unreasonable noise it's an interpretation by the challenge that and said the words inconvenience annoyance and alarm are not defined by the statute and they've already been struck down as has the specific word annoying and therefore the third thing that we challenge was the obstruct traffic obstructs is not defined it can mean anything again under thirty six the city says it means whatever the city wants it to mean and therefore as district court said on page sixty four times the officer claimed my guy was impeding traffic not obstructing impeding so we gave the court in response to mr man's twenty eight j thing a davidson versus city of stafford texas case where that court had an ordinance that even did define obstructs as meaning impede or slow down and that court said no you can't arrest people handing out literature without allowing what court was this that that circuit your honor you can't arrest people for handing out literature just because somebody slows down to take it if they're not severely restricting backdrop for this case is a statement from the united states supreme court and u s versus grace where it said people who wish to propagandize protest or abuse do not have a constitutional right to do so whenever wherever  had deeply held religious based views that were anti abortion everyone recognizes that the mission of the operational order was to provide a safe environment for the people to express their views for any counter protesters who might appear as well as other citizens of the city of little rock if i may i want to move to the public simply permit ordinance and address the challenge that first with respect to standing on an as applied basis it's undisputed in the record y ers that this permit ordinance had nothing to do with this case one there was no application for a permit no permit was applied for no permit was issued the permit ordinance never came into play with respect to these individuals is there any evidence or about who may have been talked to to request whether a permit was needed or who would have communicated that none was needed to have this  was correct with a spec to the number of people that that used to be required there was not a number it was interpreted by placed large apartment to be greater than ten but when an application was made it went to the public works department and in this case that's where that's where mr kaiser mark kaiser who is one of the associates with this group testified in his deposition he contacted the public works department indicated how many people would be appearing and i was told then that there were not be a permit needed at that time subsequent evidence showed that there really really were many more people out there and would have required a permit but they did not require them to do so anyway and what i mean by that was the day before this particular event occurred there  protesters were at little rock central high school where their evidence and record isn't undisputed that they had thirty to fifty people out there yet the police department did not require them to go get a permit they permitted them to peacefully conduct their protests so again you said none was applied for carette none was needed correct none was denied now was needed last time based upon the information provided to the public works department which is where applications go and in addition to that they have an instant a record is under spirited that they were not charged with violating the permit or it's in other words they were not taken to court and charged with with conducting a public assembly without a permit that never occurred did not have a permit but that he was not going to stop them from carrying on their protests in a snow also not undisputed that there were more than six people out there are no they've said six but from time to time especially  day before their arrest mr holland testified in his deposition that there are twenty to forty people out there it was a very fluid situation as to the number of people who came who came and went and appeared at the clinic on this particular day and lieutenant allen did nits to the noise and obstruction aspect of this is it true that the officer was under the impression that it's his discretion to decide what is too loud or what is annoying well it was not just is not just his discretion your honor he would he have valuated all of the evidence in the record at the time he made the decision to make an arrest  conduct and they have and it's on the record which is undisputed is that one of the businesses which was adjacent to the family planning services clinic which is the clinic that provided abortions is the teague vision clinic it's an optometry clinic which is very very close to the family planning services clinic you see in the record we provided photographs from a crime scene specialist which shows the very confined area in which they were operating it's a very small confined office park could was could hear inside her in her office which was an interior office without windows so and she also testified that there were someone out there protesting on an almost daily basis yet this was the first time this it ever occurred this was this was newton al was made aware of this information he was made aware of the information from ms laurie williams who's the clinical director of the family planning services clinic who also testified that she recognized there had been people out there protesting almost on a daily basis to yet this was the first time that an amplifier was used to the point that she couldn't conduct patient counseling in her clinic and that's why she called the police and this was made lieutenant al was made aware of this in addition to that detective michele was did anyone either for the city or anyone else employ the sound meter to determine the decibel level of what was being projected no your honor interchange interchange between interstate six thirty and four thirty in little rock with all of its accompanying interstate traffic sound she could hear the amplifier from two blocks away when the all other officers on the scene contact lieutenant allen who was the commander of the special response unit to come back because it had complaints from ms williams and from ms teague when he returned to the area he came within one block of the clinic roll down the windows police car and he could hear the speaking going on so within his realm of knowledge was not only the complaints of other third parties but his perception the perception of the other officers at the scene and we must remember that one when one is making a determination  or was clearly arguable probable cause to make arrest or disorderly conduct for making unreasonable or excessive noise so who's who makes the determination of what's annoying and what's excessive noise determination or is it based on the subjective views of the individual officer not based on a subjective use up would continue or are that is based on his objective listening to what's going on basing it on third party complaints it's   for purposes of conviction a jury right that well in this particular case it went to what was then called literati municipal court now called district court before judge alex lidle said he without a jury and if if they had been convicted there they had the absolute right to appeal to circuit court however they were acquitted she made the decision that the of the transcript of the trial provided by the pellets in their brief or it to their summary judgment indicated that she said al there is a bit of history there that needs to be analyzed when considering where the buttons controls in langford versus city of omaha the appellant was convicted of making unreasonable noise under the omaha city ordinance on  rly conduct the district judge from the district in nebraska held that using solely the word unreasonable meant that that was unconstitutionally vague necessity of omaha did not appeal that decision  subsequent to that the city did not take any action to repeal the unconstitutional subsection the city accepted it moved on to an appeal but they did not repeal it so it remained on the books subsequent to that was also arrested for in part violating that subsection of the city of omaha coat at trial level the district judge a different district judge in nebraska dismissed the city of omaha from the case and found that there could be no evidence that a city of omaha policy caused an unconstitutional risk on appeal to this court and not to not me but the city of omaha the council we can read all that i mean is a thirty year old case history and i just want to make the point that the city does your brief this year and thank you i also wonder if i could address briefly qualified immunity as i have indicated earlier that the testimony in the record below from lieutenant allen from detective ferguson from officer freeman from officer morgan from  who made an arrest pursuant to a stat here ordinance was denied qualified immunity because a statute or ordinance was declared vague unconstitutionally vague no your honor i wouldn't think there is one what i would make a reasonable interpretation of the law when making a decision to arrest and in this particular case we would respectfully submit that lieutenant allen did make a reasonable judgment call based on all the evidence he had at his disposal that the disorderly conduct statute has been enforced or implemented in such a way as to violate the rights of others in the state of arkansas ms mess alluded to the fact that the city adopt an inordinate which in which the city said we will enforce the laws of the state of arkansas well that's true our police officers by virtue of a city or nuts are are supposed to enforce the laws of our state the the criminal laws adopted by the legislature in the state of arkansas our officers are obligated to enforce and there's been no there was no evidence and no notice to lieutenant allen that there was anything wrong with this disorderly conduct statute which would cause him to question whether or not he couldn't force it in fact the opposite is true it had never been declared unconstitutional by the arkansas supreme court or any federal court within this district they want to allude to a concurring opinion in a case johnson versus state in which justice robert brown concurred with the affirmative of a conviction for disorderly conduct but what he said in there about the unreasonable noise aspect of it was the testimony of the police officers did not go far enough and did not actually make a case for unreasonable or excessive noise so in that particular case the evidence just wasn't there according to justice brown let me interrupt you may have already covered this and i didn't hear you does that fifth circuit case  the morning your honour's i'm david few quien i represent poleski county who is also sued by the appellants and they argued below that they had been held an unreasonable length of time but it seems to me the central dispute is really about rule making in order to have the criminal justice system work the the city of  has has a central responsibility of delivering or ensuring that people will appear in court but that's an unreasonable dilemma for being probable cause circuit court involving their posing council sites a western district of arkansas decision declaring and allegedly declaring that an unreasonable their way and in booking someone and releasing them is constitutional right to be cited out so we had i was on the panel that had the case of someone who had served his or her time and is in a soda jail and they just wasn't released right well that's a different that's a different issue than someone who's who has been arrested and booked and then is waiting and waiting arrested and waiting for processing right this this this isn't in processing not an out what was the description of what actually transpired that took the twelve hours you know under the the evidence in the record is that the the intake area where all this happened is busy there are there are people coming in all the time there are people being out process all the time there are interruptions there was no evidence as to what specifically happened to these individuals apart from being table process that is some initial paperwork being done placed in a holding cell and then waiting to be out process so there's there is evidence that there were in the in the timeframe there were there there were thirty seven people who were process who were released quicker than them and nineteen people who were released slower than them so alice lee they fell in about the middle of the time to complete the process so you know i just i don't see anything on reasonable here and that that's the been released sooner and that there just isn't that that's the argument we've made throughout i've got just a few seconds are there any questions otherwise i'll sit down that quickly the reason kirsten came along was because the fourth amendment there was no probable cause determination the for the arrest the courts that they have to have one after the it didn't say and then you can delay dolly for forty eight hours to think about whether you can cite and release people in this kind of a policy that we've said are people actually thirty six of the survey rigs said there was no explanation for the twelve hour delay he didn't say anything about medical or transport or anything he said there was no explanation after he reviewed the file test by under thirty b six for the county it's because as the other testimony which gets overlooked on our case in a supposed to be taken in the light most favorable to us said it's because we have forty eight hours there's no rush there's no concern there's no urgency and so what's predictable suggest or do you say that there's a deliberate delay is that they were going through or make these people pay the price for disrupting their day or something well that's what they would say with a discretionary policy like this where forty eight hours very predictably the favored people can be cited and released any time because there's always a sergeant on duty that has that discretion while disclaimer people bigger evidence of discriminatory intent here i'm saying our people would testify that i my clients mr doing mr holic would testify that they were just left to sit and stew for twelve hours when there wasn't any reason they couldn't been turned out because other people were in or you have any evidence of discriminatory  we don't we don't have that in this record we'd like to go to trial people with dismay murdered status for their bracelets or there were little to show that there were people who who were brought in after them who were processed and released before that yes your honor that's what will be shown at trial but if your religion or your political cause or the way you look or your color of your skin causes anybody at the jail to not really they rely on your honor those are talking about about the constitutional need to be to be brought before a magistrate and have charges explain well the reason for that is the fourth amendment the government's not allowed to just throw you in issue of dilly dallying for forty eight hours before you even cite and release they can tell you when you're booked what time you're probable cause hearing or determination of injury twelve hours of your clients with a forty eight hours that they could have you well where were challenging the forty eight hour policy because the testimony on thirty six was that was why they were held for twelve hours when they could have been turned out at any time because there was always discretion though this is a theory of first impression maybe i don't think the fourth amendment is the first impression i think the government has to have probable cause to detain on a fourth amendment issue but a detention without a warrant is a is under the fourth amendment cording to everything i read you are it's not  fourteenth amendment thing at this point we're still talking fourth amendment and do they have probable cause to arrest now that was thrown out did they have probable cause under the constitution no wonder buskins under stall did they have the court this morning the briefing you have submitted will take you case under advisement when a decision due course thank you