Legal Case Summary

Mr. Fission. Fission. Welcome back. Thank you. Good to be back. Good morning. May I please the court. I am Steve Fission with the National Legal Foundation on behalf of Steve Lefamine, the appellant in this case. The issue before the court today is whether Mr. Lefamine as a prevailing party is entitled to attorney's fees or whether the very narrow special circumstances exception would prohibit that. It is important to remember how Mr. Lefamine prevailed

. When this case was decided and still as of last night, it was the only case in the country in which a pro-life protester prevailed on free speech, peaceable assembly and free association claims. It is a very important persuasive case. We have discussed that there is no presidential value in that, but it is persuasive because it is so unique. It is fairly unique because he should never have been put in that position in the first place. But the court has said that he is a prevailing party and I think that is rightly so. Yes, Jonathan. That is exactly right. He should never have been put in that position. He was threatened with arrest twice. After a demand letter, we felt compelled to bring the lawsuit and his rights have been vindicated. Yet, the officers in this case say there is no public purpose to this litigation. They also say there is no precedent set by this case, but of course there is not by the district court's opinion on the three claims, but there is by the Supreme Court's opinion on the prevailing party

. Of course, that opinion is already being very widely cited. With that context, I would just like to explain why each of the— Waddle is cited in many different circumstances. Yes. Some really apply, as Costa Boat, to a lot of cases. That is right. That is exactly right. As we briefed to the Supreme Court as long ago as 1983, the Supreme Court had identified 150 different federal statutes in which the prevailing party—substantially prevailing party—successful party is used. Because these statutes are all construed similarly, they all impact each other. And so the prevailing party precedent is going to impact any protestor on any side of any issue. So it is very significant precedent. And with that context, I would just like to explain why the three justifications from the district court cannot be right. Two of them really go to qualified immunity

. One of them was the good faith of the officers, and the other was no policy or practice by the sheriff's office, which—just as a side note—the sheriff's office was not even a party to the litigation. We actually amended the complaint to remove sheriff's office as a defendant, but as a side note. But both of those issues impact qualified immunity. And qualified immunity simply cannot be a reason—or a campaign special circumstance—as the Supreme Court said in affirming this court's polly amendment— Fine. What—I know you have, but just kind of refresh us as to what a special circumstance what would constitute a special circumstance? Well, there is no laundry list, and the cases are legion. There rarely found some things that have been found a fee request that shocks the court's conscience. Well, of course that can't be here, because as the officers keep saying, we haven't even applied for the fees yet, and so that can't be it. So you could come here if you shocked the court's conscience with the amount you asked for? That's right. We're very mindful of that, Your Honor. Some other things that have been found if there is not much success, that ought to go to the amount of the fee award, but some courts have gone ahead and said, well, it's going to be zero anyway, so they sort of put the two analyses together. But that is one of the things that the district court said that the relief here was not a significant. But as we pointed out, and this is the very last page of the joint appendix, the Supreme Court said the relief does make Mr

. Leffamine eligible for fees. Special circumstances, if they exist, must be found elsewhere. So the relief itself cannot be a special circumstance here, although it could be in some other case. And that relief being injunctive or? Well, that's a very interesting point, because if you remember from last time, we had this long discussion as to why we wanted the declaratory relief. And we said then it really goes to the proportionality. Psychologic, I'm sorry. When you say proportionality, you mean accurately reflecting the degree of success, is that what you're describing? I just wanted to know that's what you mean. Yes, that's right. In a particular, that's one of the factors in the Mercer case when we get to how much the fee should be. And both the officers and Mr. Leffamine, we've sort of anticipated that a little bit. We've both discussed proportionality already in the briefing

. And so we did get the injunctive relief. And then, Judge, when you wrote the opinion, you said we must construe the lower court's opinion as having granted the declaratory relief as well. So he got injunctive relief. He got declaratory relief on all three claims against all five defendants. And so again, they want to paint this as a very narrow injunctive relief. We disagree with their reading of that, but I think it's a move point because the Supreme Court said the relief is enough for him to get fees unless there are special circumstances. And so the relief itself cannot be a special circumstance. I have a sort of, if you finish, yes, yes, a kind of a practical problem. What, what are you seeking? What are you asking us to do? What relief are you seeking? Yes, the relief that we asked for in the brief was that you would remain with instructions to allow Mr. Leffamine to file his petition, his application for fees. It is possible we did not make this argument in the brief, but there are cases from the circuit that stand for the proposition that this court could entertain a fee request itself. But in our brief, we asked for, would that be without a deludiation of what the appropriate special circumstances should be that are in or out? Well, no, I think that if this court were to have allowed us to make a fee application here, that would be in the case that you agree with our argument here that you agree that the district court was wrong about special circumstances, then in fact there are none

. And then we would either here in the district court apply for the fees and of course then there would probably be dispute as to, is it, well, I guess the question is whether the district court should be allowed to consider those factors, which you think, or at least you can see it are appropriate. And why should we do that in the first instance? No, I'm not suggesting that you should do that. What I'm suggesting is that the district court has already had it shot at that. But yeah, but it did so. At least you say considering at least some factors that are not appropriate. Yes, and I don't think that it should, you know, we all often talk about litigants not getting a second bite at the apple. I don't think the district court would, would should get a second bite at the apple, either it did its best to find special circumstances. The only things that came up with were things that really don't stand up. And therefore there are, there would be no others. So with respect to the qualified nature of the relief, you're not suggesting that's not a sufficient circumstance, but you're saying that may go to the quantum, then the amount of fees as opposed to zero. Yes, I think that that takes us to Mercer and Mercer has three factors that proportionality, the importance of the issue and how it impacts the policy, the public purpose. And so certainly, if we get the relief that we asked for, which is a remand with instructions, certainly the district court can then look at those things and should would need to under this course precedent

. And the instructions would be that the special circumstances identified by the court here do not go to the question of whether a parent is entitled to an award, although they may be revisited in the context of the amount of the award. I just, I really do want to understand we've been around on this. And there would appear to be the distinct possibility that you could make the application and get zero. So to the extent, I'm just trying to understand what would sat, what are you asking, assuming we agree with your argument. Yes, special circumstances would look like. Well, I think that we would simply like this court to. A remand say that the district court. Was incorrect. It bruises this question by airing as we talked about the standard review. It's actually a little tricky there. There is there is error involved in that abuse of discretion standard, but. That the district court was was wrong

. Those special circumstances do not preclude a fee award. And therefore, please allow normal briefing on a fee application. I mean, that's typical in the district courts that that both sides get to brief it. And I think that it would be entirely appropriate for the officers to be able to make whatever arguments they want in opposition to somewhere all of our hours, our rates, all the typical litigation that that happens over a fee dispute, but that the fee. Motion itself should be permitted before the court. That's I mean, to be precise, that's that's what we would like to see happen. And. We in the brief, we also make a few other points about sort of arguments in the alternative that. The court used the wrong test. But those things really were in the alternative. The bottom line is that the three factors, no matter how you get to them, cannot be special circumstances because of the relief has already been indicated by the Supreme Court. It is adequate

. And we did make additional arguments as to why that is true and the proportionality argument. And also that the other two factors really are both just subsets of qualified immunity. And again, the Supreme Court in Pullium affirming this court quoted that language from the Senate report this quoted by so many cases. And they said one of the very purposes of 1988 was for plaintiffs who would be barred from any type of damages because of immunity offenses. And so those are additional reasons why we believe that all three reasons were incorrect. I have some time left and I've been glad to answer anything any other questions you might have, but basically we just believe that. None of the three will stand up. Thank you very much. You have some time for a bottle as well. Yes. All right. Thank you

. May I please the court? Excuse me. My name is Andrew Lindeman along with Carly Harder with me here today. We represent the appellies in this case. As your honors are obviously familiar with this case. Let me touch on a couple of things initially. Number one. What is the standard review? The standard review is exactly what this court said it was. In your first opinion, which is an abuse of discretion standard reading the briefs and particularly the reply brief, it would suggest to me that. The appellant may not agree with that and may try to argue or is attempting to support to apply some sort of denouveau review. And that's clearly not the standard in this court indicated that and indicated it quite correctly. And obviously that's not part of the. A portion of the order that the Supreme Court vacated. In addition, this suggestion that the Supreme Court addressed the issue that's before this court and was before the district court on remand is absolutely not correct. The the Supreme Court's decision was extremely limited. In fact, Supreme Court didn't even allow full briefing on this case and didn't allow any or argument. They address simply the one line in this court's decision, initial decision that suggested that there may not be a material alteration of the relationship between the two parties. And therefore the district court's decision could be read as finding that there was not no prevailing party that the Mr. left me was not a prevailing party. And as your honor well knows or well remembers the only discussion of attorney's fees and that initial district court decision was as follows under the totality of the facts in this case the award of attorney's fees is not warranted. We argued at the first time we were before you, which was over a Campbell law school. That that decision needed to be that line need to be read within the context of the entire opinion. And therefore the judges rulings regarding qualified immunity and not as much the immunity aspect of it, but the finding of objective reason this which this court then affirmed. And in fact in very strong language strengthen that entire that entire argument that based upon that language it was clear that the district court's ruling was based upon a finding that any type of award would be unjust. This court didn't go that route this court took the position that there was an evidence to support of finding the Mr

. In addition, this suggestion that the Supreme Court addressed the issue that's before this court and was before the district court on remand is absolutely not correct. The the Supreme Court's decision was extremely limited. In fact, Supreme Court didn't even allow full briefing on this case and didn't allow any or argument. They address simply the one line in this court's decision, initial decision that suggested that there may not be a material alteration of the relationship between the two parties. And therefore the district court's decision could be read as finding that there was not no prevailing party that the Mr. left me was not a prevailing party. And as your honor well knows or well remembers the only discussion of attorney's fees and that initial district court decision was as follows under the totality of the facts in this case the award of attorney's fees is not warranted. We argued at the first time we were before you, which was over a Campbell law school. That that decision needed to be that line need to be read within the context of the entire opinion. And therefore the judges rulings regarding qualified immunity and not as much the immunity aspect of it, but the finding of objective reason this which this court then affirmed. And in fact in very strong language strengthen that entire that entire argument that based upon that language it was clear that the district court's ruling was based upon a finding that any type of award would be unjust. This court didn't go that route this court took the position that there was an evidence to support of finding the Mr. left me was a prevailing party. And it is that issue and that issue alone, which is what the Supreme Court vacated and the Supreme Court in very clear language I would submit in the final paragraph of its decision indicated that it was not making any decision as to whether or not fees must be award in this case. They simply found that judge that that that Mr. left me and qualified as a prevailing party and as a result was eligible to make a claim for attorney's fees, but not necessarily that he was a was to be awarded attorney's fees. And in fact, if I can quote one line from the Supreme Court's decision, it says neither of the courts below addressed whether any special circumstances exist in this case. And we do not do so whether there may be other grounds on which the police officers could contest liability for fees is a question is not a question before us. And that's the question that ultimately this court remanded to the district court and that's the question that's before this court now. The reference to other grounds, which is apparently what Mr. left me in his counsel are now interpreting to suggest that just circumstances cannot be based upon the relief for the very limited relief that was awarded. The other grounds is the issue dealing with whether or not Mr. left me mean qualifies as a prevailing party. The Supreme Court was clearly not foreclosing any basis for special circumstances

. left me was a prevailing party. And it is that issue and that issue alone, which is what the Supreme Court vacated and the Supreme Court in very clear language I would submit in the final paragraph of its decision indicated that it was not making any decision as to whether or not fees must be award in this case. They simply found that judge that that that Mr. left me and qualified as a prevailing party and as a result was eligible to make a claim for attorney's fees, but not necessarily that he was a was to be awarded attorney's fees. And in fact, if I can quote one line from the Supreme Court's decision, it says neither of the courts below addressed whether any special circumstances exist in this case. And we do not do so whether there may be other grounds on which the police officers could contest liability for fees is a question is not a question before us. And that's the question that ultimately this court remanded to the district court and that's the question that's before this court now. The reference to other grounds, which is apparently what Mr. left me in his counsel are now interpreting to suggest that just circumstances cannot be based upon the relief for the very limited relief that was awarded. The other grounds is the issue dealing with whether or not Mr. left me mean qualifies as a prevailing party. The Supreme Court was clearly not foreclosing any basis for special circumstances. None of those issues were before that court. In fact, as I've stated and as clear from the court's question and earlier, we don't even have a petition for attorney's fees that it was ever filed in this case. So I think the suggests that the Supreme Court was ruling out any factor or any consideration that could be could constitute a special circumstance is absolutely a misreading in that decision. And that it can go back for a determination that assume that we decide that that the district court finding that an award of attorney's fees was an abusive discretion. If we agree with that proposition, it would go back to for a briefing and a decision about whether special circumstances exist that affect the amount of the award. Would that be the next logical step? That would be the next logical. And certainly there are a lot of issues that would then be taken up. I mean, we don't have the actual fee petition hasn't been filed so we don't have the fees that they're actually claiming. There could be arguments about duplicative fees that could be issues about the hourly rate that's being charged and all the Barbara versus Kimberl's standards. I mean, there's also clearly there's no question as this court knows the plaintiff did not prevail on his entire claim. So clearly there would be a proportionality aspect to it. But we don't believe in submit to this court that this at a remand is necessary because what this court remanded to judge her long after the Supreme Court's decision was whether or not there special circumstances that exist

. None of those issues were before that court. In fact, as I've stated and as clear from the court's question and earlier, we don't even have a petition for attorney's fees that it was ever filed in this case. So I think the suggests that the Supreme Court was ruling out any factor or any consideration that could be could constitute a special circumstance is absolutely a misreading in that decision. And that it can go back for a determination that assume that we decide that that the district court finding that an award of attorney's fees was an abusive discretion. If we agree with that proposition, it would go back to for a briefing and a decision about whether special circumstances exist that affect the amount of the award. Would that be the next logical step? That would be the next logical. And certainly there are a lot of issues that would then be taken up. I mean, we don't have the actual fee petition hasn't been filed so we don't have the fees that they're actually claiming. There could be arguments about duplicative fees that could be issues about the hourly rate that's being charged and all the Barbara versus Kimberl's standards. I mean, there's also clearly there's no question as this court knows the plaintiff did not prevail on his entire claim. So clearly there would be a proportionality aspect to it. But we don't believe in submit to this court that this at a remand is necessary because what this court remanded to judge her long after the Supreme Court's decision was whether or not there special circumstances that exist. And he clarified does that's essentially what he found in his very first order in a one sentence decision on attorney's fees when he precluded them. But now he's given a multiple page opinion that sets out exactly what was his basis originally for finding that attorney's fees weren't appropriate and he relied on three different factors. And I would submit to the court that all three factors within his discretion constitute special circumstances that would make a ward of attorney's fees in this particular case unjust and that there has not been an abuse of discretion here. There has not been an error of law that was made the determination that he that judge her long made is not clearly based on clearly erroneous facts. And for that reason this court should affirm and just to go through those very briefly one of the points that we raise and let me let me first touch on this subject. Judge her long use the totality of the circumstances approach that I haven't heard that argued here today that that wasn't appropriate but certainly the briefs argue that that wasn't appropriate. The appellant takes the position that this court has no test. I'm not sure exactly what no test means. It's definitely not clear in the four circuits jurisprudence how this court approaches a review of special circumstances. The six circuit is actually issued an opinion that looked at all the different circuits and they suggested that the four circuit takes a case by case approach. And I don't disagree with that but then in their brief that Mr. left of me in his counsel argue that somehow a totality of the circumstances approach is inconsistent with a case by case approach

. And he clarified does that's essentially what he found in his very first order in a one sentence decision on attorney's fees when he precluded them. But now he's given a multiple page opinion that sets out exactly what was his basis originally for finding that attorney's fees weren't appropriate and he relied on three different factors. And I would submit to the court that all three factors within his discretion constitute special circumstances that would make a ward of attorney's fees in this particular case unjust and that there has not been an abuse of discretion here. There has not been an error of law that was made the determination that he that judge her long made is not clearly based on clearly erroneous facts. And for that reason this court should affirm and just to go through those very briefly one of the points that we raise and let me let me first touch on this subject. Judge her long use the totality of the circumstances approach that I haven't heard that argued here today that that wasn't appropriate but certainly the briefs argue that that wasn't appropriate. The appellant takes the position that this court has no test. I'm not sure exactly what no test means. It's definitely not clear in the four circuits jurisprudence how this court approaches a review of special circumstances. The six circuit is actually issued an opinion that looked at all the different circuits and they suggested that the four circuit takes a case by case approach. And I don't disagree with that but then in their brief that Mr. left of me in his counsel argue that somehow a totality of the circumstances approach is inconsistent with a case by case approach. And frankly I don't follow the logic of it. I don't believe that they've they've shown the logic of that. I think the totality of the circumstances can be viewed on a case by case basis. And I believe that Judge her long did not abuse his discretion in looking at what he described as a totality of the circumstances where he essentially said I'm looking at these three factors each one looked at an isolation may not be enough to deny fees but the totality of those factors certainly do justify a denial of fees in this case. And one of the things that he looked at was the fact that qualified immunity was granted to the defendants and he uses the term good faith interchangeably with qualified immunity and I would submit to the court that shouldn't attract from his analysis because good faith is not exactly qualified immunity. Even though many people still interchange those terms in fact I gave a site from I think a 2011 case of this court where this court actually called a good faith qualified immunity obviously as this court is dealt with qualified immunity. Your honors have many many times you know it's not a subjective standard it's an objective reasonableness standard and the South United States Supreme Court when they issued their decision in the Harlow case back in 1982. They got away from a subjective standard they overturned the subjective good faith immunity standard from would be striclin and they went to an objective reasonableness standard and so what we argued actually what we argued this court initially and then what we again argued judge her long on remand is that an appropriate factor to look at is the fact that the defendants got qualified immunity and we're not arguing that it's because of immunity that they can't be treated. They can't collect fees and that's why the podium case that the appellant relies on is distinguishable that dealt with judicial immunity and the argument there was simply because the defendant was entitled to judicial immunity they couldn't pay attorneys fees as well that's not our argument there are going to be situations where a defendant gets qualified immunity there may be some relief other types of relief awarded that would justify fees. But in this particular case it is overwhelmingly probative that these officers were found to that their actions were found to be objectively reasonable and light clearly established law and the reason why that's so significant is as judge her long found in this court actually expanded upon that was the fact that in 2005 there was not clearly established law that would suggest that the conduct by these officers in simply asking the abortion protesters to take their graphic signs down didn't ask them to stop protesting didn't ask them to move from the area they simply asked them to take the graphic signs down for reasons of traffic safety and for reasons of because they received complaints that children in passing by cars had seen this and that there were complaints from citizens and as this court outlined in your decision in 2005 there was no clearly established law suggesting that that was inappropriate this court even went further and said there was no clearly established law that suggested that those signs were content based and the actions of the officers were content based. Is it your position of do you agree that the relief given here supports an award of attorney's fees but in the face of that there are special circumstances or do you take the position that the relief given does not support a award of attorney's fees. Well I agree that let me just be real clear I agree that the fact that there was injunctive relief awarded as extremely limited as it was using judge her long in fact as exact terms makes Mr

. And frankly I don't follow the logic of it. I don't believe that they've they've shown the logic of that. I think the totality of the circumstances can be viewed on a case by case basis. And I believe that Judge her long did not abuse his discretion in looking at what he described as a totality of the circumstances where he essentially said I'm looking at these three factors each one looked at an isolation may not be enough to deny fees but the totality of those factors certainly do justify a denial of fees in this case. And one of the things that he looked at was the fact that qualified immunity was granted to the defendants and he uses the term good faith interchangeably with qualified immunity and I would submit to the court that shouldn't attract from his analysis because good faith is not exactly qualified immunity. Even though many people still interchange those terms in fact I gave a site from I think a 2011 case of this court where this court actually called a good faith qualified immunity obviously as this court is dealt with qualified immunity. Your honors have many many times you know it's not a subjective standard it's an objective reasonableness standard and the South United States Supreme Court when they issued their decision in the Harlow case back in 1982. They got away from a subjective standard they overturned the subjective good faith immunity standard from would be striclin and they went to an objective reasonableness standard and so what we argued actually what we argued this court initially and then what we again argued judge her long on remand is that an appropriate factor to look at is the fact that the defendants got qualified immunity and we're not arguing that it's because of immunity that they can't be treated. They can't collect fees and that's why the podium case that the appellant relies on is distinguishable that dealt with judicial immunity and the argument there was simply because the defendant was entitled to judicial immunity they couldn't pay attorneys fees as well that's not our argument there are going to be situations where a defendant gets qualified immunity there may be some relief other types of relief awarded that would justify fees. But in this particular case it is overwhelmingly probative that these officers were found to that their actions were found to be objectively reasonable and light clearly established law and the reason why that's so significant is as judge her long found in this court actually expanded upon that was the fact that in 2005 there was not clearly established law that would suggest that the conduct by these officers in simply asking the abortion protesters to take their graphic signs down didn't ask them to stop protesting didn't ask them to move from the area they simply asked them to take the graphic signs down for reasons of traffic safety and for reasons of because they received complaints that children in passing by cars had seen this and that there were complaints from citizens and as this court outlined in your decision in 2005 there was no clearly established law suggesting that that was inappropriate this court even went further and said there was no clearly established law that suggested that those signs were content based and the actions of the officers were content based. Is it your position of do you agree that the relief given here supports an award of attorney's fees but in the face of that there are special circumstances or do you take the position that the relief given does not support a award of attorney's fees. Well I agree that let me just be real clear I agree that the fact that there was injunctive relief awarded as extremely limited as it was using judge her long in fact as exact terms makes Mr. left me in a prevailing party and in fact that's why we didn't argue that initially even though that was this court's decision does that support an award of attorney's fees. It does not because our position is and has been all along that there are special circumstances that would make an award of attorney's fees in this case unjust so yes he's eligible. I'm asking this is because I you know they quoted the Supreme Court's sentence and I've been revisiting that sentence when when the Supreme Court said so when the district court ordered defenders to comply with the law the relief given as the usual case involved in such an injunction supported the award of attorney's fees. That seems to indicate at least from their perspective and maybe just reading it straight up this language to relief given when you take out that little clause that is sort of interjecting that supported the award of attorney's fees and then the remain follows well give them attorney's fees unless you find special circumstances and of course their position is one of those special circumstances can't be the relief given as the Supreme Court's sentence. What they are saying there when they say the relief given and again the next phrase is very key as as in the usual case involving such an injunction supports the award of attorney's fees what they're saying and they say it then in the very next sentence that qualifies Mr. left of mean as a prevailing party which makes him eligible to recover attorney's fees but does not answer the ultimate question that he deserves attorney's fees. And so the limited nature of the relief and quite frankly it sounds like we're seeing the same thing except I think it's just a question of how we view it is is in light of that earlier statement even with the limitation on the injunction can the relief be a basis for a special circumstance if the Supreme Court says it supports supported the award of attorney's fees mean it supported which then seems indicate okay but there may be special circumstances that may be the case. There was no award of attorney's fees for the Supreme Court even to review that's not what they're saying they're saying that supports a finding that he is a prevailing party and therefore can recover attorney's fees it's no different than the for our case where the Supreme Court found that a dominold damage of one dollar didn't support an award of attorney's fees but they still found that he was a prevailing party. So there are special circumstances that can exist there's also the whole analysis of whether there's a technical or a de minimus award and that goes to the question of whether or not there's relief I would suggest to the court I don't know of any case that doesn't that that is counter to this is that one of the special circumstances can be the relief that was awarded in this particular case judge hurlong indicated the injunctive relief for the Supreme Court. So this was extremely limited and in fact given this court's opinion where because we didn't appeal the actual injunction and part of the reason we didn't appeal the actual injunction is because there was an award of attorney's fees in judge hurlong's initial order but that award of that award of injunctive relief is highly questionable in fact this court it's several times indicates in its opinion in your opinion that that is not the case. The issue is not before you in fact footnote five of your decision you say no party challenges the district courts determination that plaintiff's first amendment rights were violated by defendant's conduct as such we assume without holding that the district courts holding on that question is correct you go further then and talk about the fact that nationally there's no clear holding concerning weather restrictions such as what we had in this particular case involving graphic signs might be deemed content based or content neutral go to footnote six. I say as noted above because this issue is not before us on appeal it remains an open question in this circuit Mr

. left me in a prevailing party and in fact that's why we didn't argue that initially even though that was this court's decision does that support an award of attorney's fees. It does not because our position is and has been all along that there are special circumstances that would make an award of attorney's fees in this case unjust so yes he's eligible. I'm asking this is because I you know they quoted the Supreme Court's sentence and I've been revisiting that sentence when when the Supreme Court said so when the district court ordered defenders to comply with the law the relief given as the usual case involved in such an injunction supported the award of attorney's fees. That seems to indicate at least from their perspective and maybe just reading it straight up this language to relief given when you take out that little clause that is sort of interjecting that supported the award of attorney's fees and then the remain follows well give them attorney's fees unless you find special circumstances and of course their position is one of those special circumstances can't be the relief given as the Supreme Court's sentence. What they are saying there when they say the relief given and again the next phrase is very key as as in the usual case involving such an injunction supports the award of attorney's fees what they're saying and they say it then in the very next sentence that qualifies Mr. left of mean as a prevailing party which makes him eligible to recover attorney's fees but does not answer the ultimate question that he deserves attorney's fees. And so the limited nature of the relief and quite frankly it sounds like we're seeing the same thing except I think it's just a question of how we view it is is in light of that earlier statement even with the limitation on the injunction can the relief be a basis for a special circumstance if the Supreme Court says it supports supported the award of attorney's fees mean it supported which then seems indicate okay but there may be special circumstances that may be the case. There was no award of attorney's fees for the Supreme Court even to review that's not what they're saying they're saying that supports a finding that he is a prevailing party and therefore can recover attorney's fees it's no different than the for our case where the Supreme Court found that a dominold damage of one dollar didn't support an award of attorney's fees but they still found that he was a prevailing party. So there are special circumstances that can exist there's also the whole analysis of whether there's a technical or a de minimus award and that goes to the question of whether or not there's relief I would suggest to the court I don't know of any case that doesn't that that is counter to this is that one of the special circumstances can be the relief that was awarded in this particular case judge hurlong indicated the injunctive relief for the Supreme Court. So this was extremely limited and in fact given this court's opinion where because we didn't appeal the actual injunction and part of the reason we didn't appeal the actual injunction is because there was an award of attorney's fees in judge hurlong's initial order but that award of that award of injunctive relief is highly questionable in fact this court it's several times indicates in its opinion in your opinion that that is not the case. The issue is not before you in fact footnote five of your decision you say no party challenges the district courts determination that plaintiff's first amendment rights were violated by defendant's conduct as such we assume without holding that the district courts holding on that question is correct you go further then and talk about the fact that nationally there's no clear holding concerning weather restrictions such as what we had in this particular case involving graphic signs might be deemed content based or content neutral go to footnote six. I say as noted above because this issue is not before us on appeal it remains an open question in this circuit Mr. Lindeman thank you for that leads to the question that I was getting ready to ask and that is what difference does it make to an attorney's fees analysis whether the officers are entitled to qualified immunity. Well the difference it makes is one of the factors to look at and again I will be the first to admit there's no case that actually supports this and there's no case that that is counter to it but that the objective reason of this of the officer's actions is a fair consideration in determining whether or not what attorney's fees are in the incentives that the statute is intended to provide for plaintiffs what incentive does a plaintiff have in this fee shifting statute if we. Establish a rule of law that says the qualified immunity would deprive that plaintiff attorney even though he prevails well again it depends on the circumstance i'm not suggesting to you that there aren't cases out there were qualified immunity is granted and I'll give you a perfect example is one sided in the. Appellance brief that I actually was involved in tangentially the summer's case dealing with the I believe license plates in South Carolina judge curry granted a qualified immunity to the director of the Department of Motor Vehicles in South Carolina which was responsible for issuing these license plates these were I believe they were Christian oriented license plates that were authorized by the South Carolina General Assembly. Judge curry ultimately awarded attorney's fees in that particular case and that would be an appropriate award in a case like that one of the issues that she looked at was the fact that both the lieutenant governor and the attorney general in South Carolina were going around the state actually addressing why they believe that that was constitutional even after judge curry had issued a temporary injunction so. Mr. Lunderman we routinely grant 1983 plaintiffs attorney fees even in the context of qualified immunity analysis on the theory that those individuals stand in the shoes of others asserting constitutional rights and we did that in the case that I sat on recently and I believe judge king wrote the opinion I doubt what I'm. I do not I'm not familiar with case law that factors in the presence or absence of qualified immunity and the offices of whether or not there was a clearly established right at issue back during into the attorney's fees analysis well actually when when there's when the plaintiffs prevail well as I indicate. There is clearly no authority either way on that particular issue but what you're looking at is whether or not there's certain special circumstances that would render an award of attorney's fees unjust so it's it's a fairness determination and so what I would submit to the court is that when the actions of the officers are deemed to be objectively reasonable when the court both the district court and in this case this court have found that there is an opportunity to be. Absolutely no law that would would would make their actions unconstitutional to give them any type of notice that their actions were unconstitutional and in fact this court goes a step further and without actually deciding it because issue wasn't before you site numerous cases from other circuits as well as some a Supreme court case that would suggest that the actual injunction was not appropriate. Well you actually the district court granted summary judgment to CCL on its first amendment claims they did. The district court did not take into consideration apparently in considering special circumstances

. Lindeman thank you for that leads to the question that I was getting ready to ask and that is what difference does it make to an attorney's fees analysis whether the officers are entitled to qualified immunity. Well the difference it makes is one of the factors to look at and again I will be the first to admit there's no case that actually supports this and there's no case that that is counter to it but that the objective reason of this of the officer's actions is a fair consideration in determining whether or not what attorney's fees are in the incentives that the statute is intended to provide for plaintiffs what incentive does a plaintiff have in this fee shifting statute if we. Establish a rule of law that says the qualified immunity would deprive that plaintiff attorney even though he prevails well again it depends on the circumstance i'm not suggesting to you that there aren't cases out there were qualified immunity is granted and I'll give you a perfect example is one sided in the. Appellance brief that I actually was involved in tangentially the summer's case dealing with the I believe license plates in South Carolina judge curry granted a qualified immunity to the director of the Department of Motor Vehicles in South Carolina which was responsible for issuing these license plates these were I believe they were Christian oriented license plates that were authorized by the South Carolina General Assembly. Judge curry ultimately awarded attorney's fees in that particular case and that would be an appropriate award in a case like that one of the issues that she looked at was the fact that both the lieutenant governor and the attorney general in South Carolina were going around the state actually addressing why they believe that that was constitutional even after judge curry had issued a temporary injunction so. Mr. Lunderman we routinely grant 1983 plaintiffs attorney fees even in the context of qualified immunity analysis on the theory that those individuals stand in the shoes of others asserting constitutional rights and we did that in the case that I sat on recently and I believe judge king wrote the opinion I doubt what I'm. I do not I'm not familiar with case law that factors in the presence or absence of qualified immunity and the offices of whether or not there was a clearly established right at issue back during into the attorney's fees analysis well actually when when there's when the plaintiffs prevail well as I indicate. There is clearly no authority either way on that particular issue but what you're looking at is whether or not there's certain special circumstances that would render an award of attorney's fees unjust so it's it's a fairness determination and so what I would submit to the court is that when the actions of the officers are deemed to be objectively reasonable when the court both the district court and in this case this court have found that there is an opportunity to be. Absolutely no law that would would would make their actions unconstitutional to give them any type of notice that their actions were unconstitutional and in fact this court goes a step further and without actually deciding it because issue wasn't before you site numerous cases from other circuits as well as some a Supreme court case that would suggest that the actual injunction was not appropriate. Well you actually the district court granted summary judgment to CCL on its first amendment claims they did. The district court did not take into consideration apparently in considering special circumstances. Well and that issue wasn't wasn't before them as far as the attorneys fees at that point of course then judge her along did make in that one sentence determination he did find that they would not be warranted with his language in his initial decision as indicated he's now supported that and he supported that by showing number one that as indicated the objective reasonable and the the minimal relief award and also the fact that as we argued he discussed in terms of no policy or practice or. The court was not a custom by the department but as we indicated there was no history of any problems in dealing with abortion protesters in Greenwood County you weren't dealing with I see my times up if I can just finish this point there were not they weren't dealing with recalcitrant officers they weren't dealing with the situation where officers were constantly violating the law. So just the opposite in this particular case is judge her along found so we would ask that the court find that there was not an abuse of discretion here special circumstances do exist and ask the court to affirm thank you. Mr. Fitchin. Thank you on the standard review debate will simply rely on page seven of our opening brief and page three of our library and not rehash that again. We believe that the way to read the Supreme Court opinion is exactly the way judge when suggested it could and should be read. We're looking at that exact sentence that he read out loud a moment ago we believe that is the correct reading of it as far as to tell you the circumstances test a couple points there. Number one it may not be that important because we argue that in our opening brief when we zeroed in on good faith but they're saying well it's really not about good faith anyway because it's postarlo and if they want to say it's not about good faith that's fine by us because our whole point was it should not be given anyway anyway. So if they want to just say no it's remove the subjective good faith as harlow did and go strictly with the objective we're okay with that because we think that's best actually the way it should be looked at it should be looked at objectively but it cannot constitute a special circumstance and that which leads me to a point of response. Mr. Lindeman mentioned that polium was a judicial immunity case and that somehow that makes a difference but our use of polium is because the court quoted the Senate or excuse me actually the House report and the House report was not limited to judicial immunity cases

. Well and that issue wasn't wasn't before them as far as the attorneys fees at that point of course then judge her along did make in that one sentence determination he did find that they would not be warranted with his language in his initial decision as indicated he's now supported that and he supported that by showing number one that as indicated the objective reasonable and the the minimal relief award and also the fact that as we argued he discussed in terms of no policy or practice or. The court was not a custom by the department but as we indicated there was no history of any problems in dealing with abortion protesters in Greenwood County you weren't dealing with I see my times up if I can just finish this point there were not they weren't dealing with recalcitrant officers they weren't dealing with the situation where officers were constantly violating the law. So just the opposite in this particular case is judge her along found so we would ask that the court find that there was not an abuse of discretion here special circumstances do exist and ask the court to affirm thank you. Mr. Fitchin. Thank you on the standard review debate will simply rely on page seven of our opening brief and page three of our library and not rehash that again. We believe that the way to read the Supreme Court opinion is exactly the way judge when suggested it could and should be read. We're looking at that exact sentence that he read out loud a moment ago we believe that is the correct reading of it as far as to tell you the circumstances test a couple points there. Number one it may not be that important because we argue that in our opening brief when we zeroed in on good faith but they're saying well it's really not about good faith anyway because it's postarlo and if they want to say it's not about good faith that's fine by us because our whole point was it should not be given anyway anyway. So if they want to just say no it's remove the subjective good faith as harlow did and go strictly with the objective we're okay with that because we think that's best actually the way it should be looked at it should be looked at objectively but it cannot constitute a special circumstance and that which leads me to a point of response. Mr. Lindeman mentioned that polium was a judicial immunity case and that somehow that makes a difference but our use of polium is because the court quoted the Senate or excuse me actually the House report and the House report was not limited to judicial immunity cases. What the House report says is it should be observed that in some cases immunity doctrines and special defenses available only to public officials preclude or severely limit the damage remedy consequently awarding council fees to prevailing plaintiffs in such litigation is particularly important and necessary that proposition is not limited to judicial immunity cases. Does that mean that that acts as an absolute bar to the consideration of immunity issues when dealing with with these cases. The short answer to that is that many cases in many district courts and many circuits have so held. They they quote this language all the time is completely irrelevant in every certain things. It's not your relevant. In some circuit so for instance in the ninth circuit they do use the good faith even post harlow they will use the good faith component of qualified immunity. In conjunction with other things to sometimes say there were special circumstances so it's not an absolute bar in all circuits but but our point is that going back now to the good faith part not not to all qualified immunity. In this circuit as the district judge acknowledged good faith is not a special circumstance that's this court's precedent and that's what controls here of course and so the good faith cannot be as far as if if your owners do want to look at whether or not the touting circumstances was a correct test again we think maybe you don't have to after their concession that it's really we need to think post harlow but if you wanted to look at that the analogy is let's say there's a best interest to the child analysis and there's a statutory laundry list of you can look at these. These factors and only these factors and let's say that good faith is not on that list to mix my metaphor but you know you got a list of factors and good faith isn't there well the district judge said I know that I know the four circuits says I'm not supposed to look at good faith but here's a way that I think that I can and that was the point we were trying to make why to tell you circumstances is wrong in case by case is correct that was our that was our point there. And as far as their objective behavior he was threatened twice he was shut down on the street once and then we wrote a letter and Greenwood city sheriff said come on back but the Greenwood County sheriff says we'll arrest you if you do so there is a pattern in practice with regard to these litigants whether there is a broader practice or not and when we were here well when we were at Campbell last time we had a discussion of how law of the case would would impact this if we ever came back and there's there's something going on here where where the district judge is I think trying to get a little bit away from the law of the case and if you'll indulge me I'd like to read just a couple of things from the joint appendix and this from page 397 he says confronted with a litany of and this is this is his opinion that leave appealed now to his second opinion confronted with a litany of complaints and mount a mounting traffic flow issues exacerbated by protesters close proximity to ongoing motorists the defendants were attempting to diffuse an unsafe situation that was quickly escalating but that's not what he actually found on page 285 of the joint appendix and I'm going to run out of time on on 285 which is his first opinion and which is law of the case what he did there is he looked at their arguments about traffic safety and he looked at ours so he looked at both sides of the argument and at the bottom of page 285 of the joint appendix despite defendants arguments the traffic safety was a compelling interest in his conversation with plaintiff major Smith did not mention traffic safety as his reason for wanting the science down the record evidence the record evidence is that two citizens made complaints however neither complaint stated that the signs were interfering with traffic and if you skip the block quote the record is devoid however of any evidence of car accidents unusual or dangerous congestion or any similar traffic concerns the court finds the traffic safety under these facts was not a compelling interest and that's just an example that we do believe he's trying to run away a little bit from the law of the case thank you thank you

Mr. Fission. Fission. Welcome back. Thank you. Good to be back. Good morning. May I please the court. I am Steve Fission with the National Legal Foundation on behalf of Steve Lefamine, the appellant in this case. The issue before the court today is whether Mr. Lefamine as a prevailing party is entitled to attorney's fees or whether the very narrow special circumstances exception would prohibit that. It is important to remember how Mr. Lefamine prevailed. When this case was decided and still as of last night, it was the only case in the country in which a pro-life protester prevailed on free speech, peaceable assembly and free association claims. It is a very important persuasive case. We have discussed that there is no presidential value in that, but it is persuasive because it is so unique. It is fairly unique because he should never have been put in that position in the first place. But the court has said that he is a prevailing party and I think that is rightly so. Yes, Jonathan. That is exactly right. He should never have been put in that position. He was threatened with arrest twice. After a demand letter, we felt compelled to bring the lawsuit and his rights have been vindicated. Yet, the officers in this case say there is no public purpose to this litigation. They also say there is no precedent set by this case, but of course there is not by the district court's opinion on the three claims, but there is by the Supreme Court's opinion on the prevailing party. Of course, that opinion is already being very widely cited. With that context, I would just like to explain why each of the— Waddle is cited in many different circumstances. Yes. Some really apply, as Costa Boat, to a lot of cases. That is right. That is exactly right. As we briefed to the Supreme Court as long ago as 1983, the Supreme Court had identified 150 different federal statutes in which the prevailing party—substantially prevailing party—successful party is used. Because these statutes are all construed similarly, they all impact each other. And so the prevailing party precedent is going to impact any protestor on any side of any issue. So it is very significant precedent. And with that context, I would just like to explain why the three justifications from the district court cannot be right. Two of them really go to qualified immunity. One of them was the good faith of the officers, and the other was no policy or practice by the sheriff's office, which—just as a side note—the sheriff's office was not even a party to the litigation. We actually amended the complaint to remove sheriff's office as a defendant, but as a side note. But both of those issues impact qualified immunity. And qualified immunity simply cannot be a reason—or a campaign special circumstance—as the Supreme Court said in affirming this court's polly amendment— Fine. What—I know you have, but just kind of refresh us as to what a special circumstance what would constitute a special circumstance? Well, there is no laundry list, and the cases are legion. There rarely found some things that have been found a fee request that shocks the court's conscience. Well, of course that can't be here, because as the officers keep saying, we haven't even applied for the fees yet, and so that can't be it. So you could come here if you shocked the court's conscience with the amount you asked for? That's right. We're very mindful of that, Your Honor. Some other things that have been found if there is not much success, that ought to go to the amount of the fee award, but some courts have gone ahead and said, well, it's going to be zero anyway, so they sort of put the two analyses together. But that is one of the things that the district court said that the relief here was not a significant. But as we pointed out, and this is the very last page of the joint appendix, the Supreme Court said the relief does make Mr. Leffamine eligible for fees. Special circumstances, if they exist, must be found elsewhere. So the relief itself cannot be a special circumstance here, although it could be in some other case. And that relief being injunctive or? Well, that's a very interesting point, because if you remember from last time, we had this long discussion as to why we wanted the declaratory relief. And we said then it really goes to the proportionality. Psychologic, I'm sorry. When you say proportionality, you mean accurately reflecting the degree of success, is that what you're describing? I just wanted to know that's what you mean. Yes, that's right. In a particular, that's one of the factors in the Mercer case when we get to how much the fee should be. And both the officers and Mr. Leffamine, we've sort of anticipated that a little bit. We've both discussed proportionality already in the briefing. And so we did get the injunctive relief. And then, Judge, when you wrote the opinion, you said we must construe the lower court's opinion as having granted the declaratory relief as well. So he got injunctive relief. He got declaratory relief on all three claims against all five defendants. And so again, they want to paint this as a very narrow injunctive relief. We disagree with their reading of that, but I think it's a move point because the Supreme Court said the relief is enough for him to get fees unless there are special circumstances. And so the relief itself cannot be a special circumstance. I have a sort of, if you finish, yes, yes, a kind of a practical problem. What, what are you seeking? What are you asking us to do? What relief are you seeking? Yes, the relief that we asked for in the brief was that you would remain with instructions to allow Mr. Leffamine to file his petition, his application for fees. It is possible we did not make this argument in the brief, but there are cases from the circuit that stand for the proposition that this court could entertain a fee request itself. But in our brief, we asked for, would that be without a deludiation of what the appropriate special circumstances should be that are in or out? Well, no, I think that if this court were to have allowed us to make a fee application here, that would be in the case that you agree with our argument here that you agree that the district court was wrong about special circumstances, then in fact there are none. And then we would either here in the district court apply for the fees and of course then there would probably be dispute as to, is it, well, I guess the question is whether the district court should be allowed to consider those factors, which you think, or at least you can see it are appropriate. And why should we do that in the first instance? No, I'm not suggesting that you should do that. What I'm suggesting is that the district court has already had it shot at that. But yeah, but it did so. At least you say considering at least some factors that are not appropriate. Yes, and I don't think that it should, you know, we all often talk about litigants not getting a second bite at the apple. I don't think the district court would, would should get a second bite at the apple, either it did its best to find special circumstances. The only things that came up with were things that really don't stand up. And therefore there are, there would be no others. So with respect to the qualified nature of the relief, you're not suggesting that's not a sufficient circumstance, but you're saying that may go to the quantum, then the amount of fees as opposed to zero. Yes, I think that that takes us to Mercer and Mercer has three factors that proportionality, the importance of the issue and how it impacts the policy, the public purpose. And so certainly, if we get the relief that we asked for, which is a remand with instructions, certainly the district court can then look at those things and should would need to under this course precedent. And the instructions would be that the special circumstances identified by the court here do not go to the question of whether a parent is entitled to an award, although they may be revisited in the context of the amount of the award. I just, I really do want to understand we've been around on this. And there would appear to be the distinct possibility that you could make the application and get zero. So to the extent, I'm just trying to understand what would sat, what are you asking, assuming we agree with your argument. Yes, special circumstances would look like. Well, I think that we would simply like this court to. A remand say that the district court. Was incorrect. It bruises this question by airing as we talked about the standard review. It's actually a little tricky there. There is there is error involved in that abuse of discretion standard, but. That the district court was was wrong. Those special circumstances do not preclude a fee award. And therefore, please allow normal briefing on a fee application. I mean, that's typical in the district courts that that both sides get to brief it. And I think that it would be entirely appropriate for the officers to be able to make whatever arguments they want in opposition to somewhere all of our hours, our rates, all the typical litigation that that happens over a fee dispute, but that the fee. Motion itself should be permitted before the court. That's I mean, to be precise, that's that's what we would like to see happen. And. We in the brief, we also make a few other points about sort of arguments in the alternative that. The court used the wrong test. But those things really were in the alternative. The bottom line is that the three factors, no matter how you get to them, cannot be special circumstances because of the relief has already been indicated by the Supreme Court. It is adequate. And we did make additional arguments as to why that is true and the proportionality argument. And also that the other two factors really are both just subsets of qualified immunity. And again, the Supreme Court in Pullium affirming this court quoted that language from the Senate report this quoted by so many cases. And they said one of the very purposes of 1988 was for plaintiffs who would be barred from any type of damages because of immunity offenses. And so those are additional reasons why we believe that all three reasons were incorrect. I have some time left and I've been glad to answer anything any other questions you might have, but basically we just believe that. None of the three will stand up. Thank you very much. You have some time for a bottle as well. Yes. All right. Thank you. May I please the court? Excuse me. My name is Andrew Lindeman along with Carly Harder with me here today. We represent the appellies in this case. As your honors are obviously familiar with this case. Let me touch on a couple of things initially. Number one. What is the standard review? The standard review is exactly what this court said it was. In your first opinion, which is an abuse of discretion standard reading the briefs and particularly the reply brief, it would suggest to me that. The appellant may not agree with that and may try to argue or is attempting to support to apply some sort of denouveau review. And that's clearly not the standard in this court indicated that and indicated it quite correctly. And obviously that's not part of the. A portion of the order that the Supreme Court vacated. In addition, this suggestion that the Supreme Court addressed the issue that's before this court and was before the district court on remand is absolutely not correct. The the Supreme Court's decision was extremely limited. In fact, Supreme Court didn't even allow full briefing on this case and didn't allow any or argument. They address simply the one line in this court's decision, initial decision that suggested that there may not be a material alteration of the relationship between the two parties. And therefore the district court's decision could be read as finding that there was not no prevailing party that the Mr. left me was not a prevailing party. And as your honor well knows or well remembers the only discussion of attorney's fees and that initial district court decision was as follows under the totality of the facts in this case the award of attorney's fees is not warranted. We argued at the first time we were before you, which was over a Campbell law school. That that decision needed to be that line need to be read within the context of the entire opinion. And therefore the judges rulings regarding qualified immunity and not as much the immunity aspect of it, but the finding of objective reason this which this court then affirmed. And in fact in very strong language strengthen that entire that entire argument that based upon that language it was clear that the district court's ruling was based upon a finding that any type of award would be unjust. This court didn't go that route this court took the position that there was an evidence to support of finding the Mr. left me was a prevailing party. And it is that issue and that issue alone, which is what the Supreme Court vacated and the Supreme Court in very clear language I would submit in the final paragraph of its decision indicated that it was not making any decision as to whether or not fees must be award in this case. They simply found that judge that that that Mr. left me and qualified as a prevailing party and as a result was eligible to make a claim for attorney's fees, but not necessarily that he was a was to be awarded attorney's fees. And in fact, if I can quote one line from the Supreme Court's decision, it says neither of the courts below addressed whether any special circumstances exist in this case. And we do not do so whether there may be other grounds on which the police officers could contest liability for fees is a question is not a question before us. And that's the question that ultimately this court remanded to the district court and that's the question that's before this court now. The reference to other grounds, which is apparently what Mr. left me in his counsel are now interpreting to suggest that just circumstances cannot be based upon the relief for the very limited relief that was awarded. The other grounds is the issue dealing with whether or not Mr. left me mean qualifies as a prevailing party. The Supreme Court was clearly not foreclosing any basis for special circumstances. None of those issues were before that court. In fact, as I've stated and as clear from the court's question and earlier, we don't even have a petition for attorney's fees that it was ever filed in this case. So I think the suggests that the Supreme Court was ruling out any factor or any consideration that could be could constitute a special circumstance is absolutely a misreading in that decision. And that it can go back for a determination that assume that we decide that that the district court finding that an award of attorney's fees was an abusive discretion. If we agree with that proposition, it would go back to for a briefing and a decision about whether special circumstances exist that affect the amount of the award. Would that be the next logical step? That would be the next logical. And certainly there are a lot of issues that would then be taken up. I mean, we don't have the actual fee petition hasn't been filed so we don't have the fees that they're actually claiming. There could be arguments about duplicative fees that could be issues about the hourly rate that's being charged and all the Barbara versus Kimberl's standards. I mean, there's also clearly there's no question as this court knows the plaintiff did not prevail on his entire claim. So clearly there would be a proportionality aspect to it. But we don't believe in submit to this court that this at a remand is necessary because what this court remanded to judge her long after the Supreme Court's decision was whether or not there special circumstances that exist. And he clarified does that's essentially what he found in his very first order in a one sentence decision on attorney's fees when he precluded them. But now he's given a multiple page opinion that sets out exactly what was his basis originally for finding that attorney's fees weren't appropriate and he relied on three different factors. And I would submit to the court that all three factors within his discretion constitute special circumstances that would make a ward of attorney's fees in this particular case unjust and that there has not been an abuse of discretion here. There has not been an error of law that was made the determination that he that judge her long made is not clearly based on clearly erroneous facts. And for that reason this court should affirm and just to go through those very briefly one of the points that we raise and let me let me first touch on this subject. Judge her long use the totality of the circumstances approach that I haven't heard that argued here today that that wasn't appropriate but certainly the briefs argue that that wasn't appropriate. The appellant takes the position that this court has no test. I'm not sure exactly what no test means. It's definitely not clear in the four circuits jurisprudence how this court approaches a review of special circumstances. The six circuit is actually issued an opinion that looked at all the different circuits and they suggested that the four circuit takes a case by case approach. And I don't disagree with that but then in their brief that Mr. left of me in his counsel argue that somehow a totality of the circumstances approach is inconsistent with a case by case approach. And frankly I don't follow the logic of it. I don't believe that they've they've shown the logic of that. I think the totality of the circumstances can be viewed on a case by case basis. And I believe that Judge her long did not abuse his discretion in looking at what he described as a totality of the circumstances where he essentially said I'm looking at these three factors each one looked at an isolation may not be enough to deny fees but the totality of those factors certainly do justify a denial of fees in this case. And one of the things that he looked at was the fact that qualified immunity was granted to the defendants and he uses the term good faith interchangeably with qualified immunity and I would submit to the court that shouldn't attract from his analysis because good faith is not exactly qualified immunity. Even though many people still interchange those terms in fact I gave a site from I think a 2011 case of this court where this court actually called a good faith qualified immunity obviously as this court is dealt with qualified immunity. Your honors have many many times you know it's not a subjective standard it's an objective reasonableness standard and the South United States Supreme Court when they issued their decision in the Harlow case back in 1982. They got away from a subjective standard they overturned the subjective good faith immunity standard from would be striclin and they went to an objective reasonableness standard and so what we argued actually what we argued this court initially and then what we again argued judge her long on remand is that an appropriate factor to look at is the fact that the defendants got qualified immunity and we're not arguing that it's because of immunity that they can't be treated. They can't collect fees and that's why the podium case that the appellant relies on is distinguishable that dealt with judicial immunity and the argument there was simply because the defendant was entitled to judicial immunity they couldn't pay attorneys fees as well that's not our argument there are going to be situations where a defendant gets qualified immunity there may be some relief other types of relief awarded that would justify fees. But in this particular case it is overwhelmingly probative that these officers were found to that their actions were found to be objectively reasonable and light clearly established law and the reason why that's so significant is as judge her long found in this court actually expanded upon that was the fact that in 2005 there was not clearly established law that would suggest that the conduct by these officers in simply asking the abortion protesters to take their graphic signs down didn't ask them to stop protesting didn't ask them to move from the area they simply asked them to take the graphic signs down for reasons of traffic safety and for reasons of because they received complaints that children in passing by cars had seen this and that there were complaints from citizens and as this court outlined in your decision in 2005 there was no clearly established law suggesting that that was inappropriate this court even went further and said there was no clearly established law that suggested that those signs were content based and the actions of the officers were content based. Is it your position of do you agree that the relief given here supports an award of attorney's fees but in the face of that there are special circumstances or do you take the position that the relief given does not support a award of attorney's fees. Well I agree that let me just be real clear I agree that the fact that there was injunctive relief awarded as extremely limited as it was using judge her long in fact as exact terms makes Mr. left me in a prevailing party and in fact that's why we didn't argue that initially even though that was this court's decision does that support an award of attorney's fees. It does not because our position is and has been all along that there are special circumstances that would make an award of attorney's fees in this case unjust so yes he's eligible. I'm asking this is because I you know they quoted the Supreme Court's sentence and I've been revisiting that sentence when when the Supreme Court said so when the district court ordered defenders to comply with the law the relief given as the usual case involved in such an injunction supported the award of attorney's fees. That seems to indicate at least from their perspective and maybe just reading it straight up this language to relief given when you take out that little clause that is sort of interjecting that supported the award of attorney's fees and then the remain follows well give them attorney's fees unless you find special circumstances and of course their position is one of those special circumstances can't be the relief given as the Supreme Court's sentence. What they are saying there when they say the relief given and again the next phrase is very key as as in the usual case involving such an injunction supports the award of attorney's fees what they're saying and they say it then in the very next sentence that qualifies Mr. left of mean as a prevailing party which makes him eligible to recover attorney's fees but does not answer the ultimate question that he deserves attorney's fees. And so the limited nature of the relief and quite frankly it sounds like we're seeing the same thing except I think it's just a question of how we view it is is in light of that earlier statement even with the limitation on the injunction can the relief be a basis for a special circumstance if the Supreme Court says it supports supported the award of attorney's fees mean it supported which then seems indicate okay but there may be special circumstances that may be the case. There was no award of attorney's fees for the Supreme Court even to review that's not what they're saying they're saying that supports a finding that he is a prevailing party and therefore can recover attorney's fees it's no different than the for our case where the Supreme Court found that a dominold damage of one dollar didn't support an award of attorney's fees but they still found that he was a prevailing party. So there are special circumstances that can exist there's also the whole analysis of whether there's a technical or a de minimus award and that goes to the question of whether or not there's relief I would suggest to the court I don't know of any case that doesn't that that is counter to this is that one of the special circumstances can be the relief that was awarded in this particular case judge hurlong indicated the injunctive relief for the Supreme Court. So this was extremely limited and in fact given this court's opinion where because we didn't appeal the actual injunction and part of the reason we didn't appeal the actual injunction is because there was an award of attorney's fees in judge hurlong's initial order but that award of that award of injunctive relief is highly questionable in fact this court it's several times indicates in its opinion in your opinion that that is not the case. The issue is not before you in fact footnote five of your decision you say no party challenges the district courts determination that plaintiff's first amendment rights were violated by defendant's conduct as such we assume without holding that the district courts holding on that question is correct you go further then and talk about the fact that nationally there's no clear holding concerning weather restrictions such as what we had in this particular case involving graphic signs might be deemed content based or content neutral go to footnote six. I say as noted above because this issue is not before us on appeal it remains an open question in this circuit Mr. Lindeman thank you for that leads to the question that I was getting ready to ask and that is what difference does it make to an attorney's fees analysis whether the officers are entitled to qualified immunity. Well the difference it makes is one of the factors to look at and again I will be the first to admit there's no case that actually supports this and there's no case that that is counter to it but that the objective reason of this of the officer's actions is a fair consideration in determining whether or not what attorney's fees are in the incentives that the statute is intended to provide for plaintiffs what incentive does a plaintiff have in this fee shifting statute if we. Establish a rule of law that says the qualified immunity would deprive that plaintiff attorney even though he prevails well again it depends on the circumstance i'm not suggesting to you that there aren't cases out there were qualified immunity is granted and I'll give you a perfect example is one sided in the. Appellance brief that I actually was involved in tangentially the summer's case dealing with the I believe license plates in South Carolina judge curry granted a qualified immunity to the director of the Department of Motor Vehicles in South Carolina which was responsible for issuing these license plates these were I believe they were Christian oriented license plates that were authorized by the South Carolina General Assembly. Judge curry ultimately awarded attorney's fees in that particular case and that would be an appropriate award in a case like that one of the issues that she looked at was the fact that both the lieutenant governor and the attorney general in South Carolina were going around the state actually addressing why they believe that that was constitutional even after judge curry had issued a temporary injunction so. Mr. Lunderman we routinely grant 1983 plaintiffs attorney fees even in the context of qualified immunity analysis on the theory that those individuals stand in the shoes of others asserting constitutional rights and we did that in the case that I sat on recently and I believe judge king wrote the opinion I doubt what I'm. I do not I'm not familiar with case law that factors in the presence or absence of qualified immunity and the offices of whether or not there was a clearly established right at issue back during into the attorney's fees analysis well actually when when there's when the plaintiffs prevail well as I indicate. There is clearly no authority either way on that particular issue but what you're looking at is whether or not there's certain special circumstances that would render an award of attorney's fees unjust so it's it's a fairness determination and so what I would submit to the court is that when the actions of the officers are deemed to be objectively reasonable when the court both the district court and in this case this court have found that there is an opportunity to be. Absolutely no law that would would would make their actions unconstitutional to give them any type of notice that their actions were unconstitutional and in fact this court goes a step further and without actually deciding it because issue wasn't before you site numerous cases from other circuits as well as some a Supreme court case that would suggest that the actual injunction was not appropriate. Well you actually the district court granted summary judgment to CCL on its first amendment claims they did. The district court did not take into consideration apparently in considering special circumstances. Well and that issue wasn't wasn't before them as far as the attorneys fees at that point of course then judge her along did make in that one sentence determination he did find that they would not be warranted with his language in his initial decision as indicated he's now supported that and he supported that by showing number one that as indicated the objective reasonable and the the minimal relief award and also the fact that as we argued he discussed in terms of no policy or practice or. The court was not a custom by the department but as we indicated there was no history of any problems in dealing with abortion protesters in Greenwood County you weren't dealing with I see my times up if I can just finish this point there were not they weren't dealing with recalcitrant officers they weren't dealing with the situation where officers were constantly violating the law. So just the opposite in this particular case is judge her along found so we would ask that the court find that there was not an abuse of discretion here special circumstances do exist and ask the court to affirm thank you. Mr. Fitchin. Thank you on the standard review debate will simply rely on page seven of our opening brief and page three of our library and not rehash that again. We believe that the way to read the Supreme Court opinion is exactly the way judge when suggested it could and should be read. We're looking at that exact sentence that he read out loud a moment ago we believe that is the correct reading of it as far as to tell you the circumstances test a couple points there. Number one it may not be that important because we argue that in our opening brief when we zeroed in on good faith but they're saying well it's really not about good faith anyway because it's postarlo and if they want to say it's not about good faith that's fine by us because our whole point was it should not be given anyway anyway. So if they want to just say no it's remove the subjective good faith as harlow did and go strictly with the objective we're okay with that because we think that's best actually the way it should be looked at it should be looked at objectively but it cannot constitute a special circumstance and that which leads me to a point of response. Mr. Lindeman mentioned that polium was a judicial immunity case and that somehow that makes a difference but our use of polium is because the court quoted the Senate or excuse me actually the House report and the House report was not limited to judicial immunity cases. What the House report says is it should be observed that in some cases immunity doctrines and special defenses available only to public officials preclude or severely limit the damage remedy consequently awarding council fees to prevailing plaintiffs in such litigation is particularly important and necessary that proposition is not limited to judicial immunity cases. Does that mean that that acts as an absolute bar to the consideration of immunity issues when dealing with with these cases. The short answer to that is that many cases in many district courts and many circuits have so held. They they quote this language all the time is completely irrelevant in every certain things. It's not your relevant. In some circuit so for instance in the ninth circuit they do use the good faith even post harlow they will use the good faith component of qualified immunity. In conjunction with other things to sometimes say there were special circumstances so it's not an absolute bar in all circuits but but our point is that going back now to the good faith part not not to all qualified immunity. In this circuit as the district judge acknowledged good faith is not a special circumstance that's this court's precedent and that's what controls here of course and so the good faith cannot be as far as if if your owners do want to look at whether or not the touting circumstances was a correct test again we think maybe you don't have to after their concession that it's really we need to think post harlow but if you wanted to look at that the analogy is let's say there's a best interest to the child analysis and there's a statutory laundry list of you can look at these. These factors and only these factors and let's say that good faith is not on that list to mix my metaphor but you know you got a list of factors and good faith isn't there well the district judge said I know that I know the four circuits says I'm not supposed to look at good faith but here's a way that I think that I can and that was the point we were trying to make why to tell you circumstances is wrong in case by case is correct that was our that was our point there. And as far as their objective behavior he was threatened twice he was shut down on the street once and then we wrote a letter and Greenwood city sheriff said come on back but the Greenwood County sheriff says we'll arrest you if you do so there is a pattern in practice with regard to these litigants whether there is a broader practice or not and when we were here well when we were at Campbell last time we had a discussion of how law of the case would would impact this if we ever came back and there's there's something going on here where where the district judge is I think trying to get a little bit away from the law of the case and if you'll indulge me I'd like to read just a couple of things from the joint appendix and this from page 397 he says confronted with a litany of and this is this is his opinion that leave appealed now to his second opinion confronted with a litany of complaints and mount a mounting traffic flow issues exacerbated by protesters close proximity to ongoing motorists the defendants were attempting to diffuse an unsafe situation that was quickly escalating but that's not what he actually found on page 285 of the joint appendix and I'm going to run out of time on on 285 which is his first opinion and which is law of the case what he did there is he looked at their arguments about traffic safety and he looked at ours so he looked at both sides of the argument and at the bottom of page 285 of the joint appendix despite defendants arguments the traffic safety was a compelling interest in his conversation with plaintiff major Smith did not mention traffic safety as his reason for wanting the science down the record evidence the record evidence is that two citizens made complaints however neither complaint stated that the signs were interfering with traffic and if you skip the block quote the record is devoid however of any evidence of car accidents unusual or dangerous congestion or any similar traffic concerns the court finds the traffic safety under these facts was not a compelling interest and that's just an example that we do believe he's trying to run away a little bit from the law of the case thank you thank yo