We're here, my name is Joel Robbins, and I represent Nick Tar. And we're here because on Halloween of 2002, less than a week before an election, which would decide a proposition that Nick Tar was a spokesperson for, a proposition which Sheriff Harpio was a spokesperson against. What was the proposition to think? It was a question of whether or not gaming would be allowed in race tracks, which was Nick Tar's proposition that he was supporting, or it would only be allowed on Indian reservations. Nick Tar was the spokesperson. He was portrayed as Joe Arizona, and his tagline was Do the Math. So the plane of one of the proposition where they could have gambling at the racetrack, and the Sheriff wanted only at the Indian Reserves. Okay, right. And the whole thing. What it was all about. Do the math. It'll make all the difference. The relevant in the world, Nick Tar on Halloween came into a restaurant called Tom's Tavern, which is a bar. It sounds like a joke. A guy walks into a bar wearing pink underwear and gets arrested. He was wearing a uniform or a costume with one, two, and arguably three badges. The badges, the badges we don't care about is the badges, the portrayal of the badge on the pink underwear. These are called shoulder patches. These are not what you flash when you want to pull someone over. You're saying a police said they don't usually wear pink underwear to show? There's a side conversation that was held. It's not an record. It was interesting. I would say we're talking about the, that's not our new uniform. This was an exhibit in trial, I think. I'm sorry. This was an exhibit
. We saw the pictures. Yes, the photographs are within the pictures. They're all exhibits on the summary judgment motion. So we're lab, we can use them to make our decision. Please photograph your have in your, in your, blue briefs. They're the ones that you used at the court. At the court, yes, you're okay. They also were at the Davis describing the uniform, describing the pink underwear. But as you can see, You bring him in to wear it for something different. I wouldn't love to know if you're honest. This is the second question that I've been asked. When I went back to the, to the state court to argue this case, he asked me one question and his first question, how the hell did you lose this case? And honest to God, I couldn't answer him. These color pictures incidentally in your brief are tremendously helpful. I don't know why everybody didn't do that now that everybody had inkjet frames. Everyone doesn't have this case because I guarantee a, a color picture of that first thing you guys reviewed today. We don't get a lot of pink underwear cases, but we get a lot of cases where the pictures would help. It is very, a very color picture. What's your best authority incidentally? Do you have another case where the police arrested somebody for impersonating a policeman and the obviously wasn't and that the court said no qualified immunity. Go to the crowd. Well, if you're going to take that interpretation, there is no specific case on point. But the lower court actually got passed those parts of the SOCIA analysis and said that since 1979, it's been a requirement that they're reprobable cause. They said, they said it's been well established. And then they went to the last step of the SOCIA analysis and said, could a reasonable police officer under the circumstances be confused about the presence of the gaffers versus the passions? I understand your distinction between this case and the retired police when at the front show case. Yes
. Now, what I'm asking for, do you have something we can hang our hat on other than the doctrine, some case that's just like yours? No, of course not. Because no one in the world is insane enough who's arrested someone for wearing a badge of the highway patrol who got two 10 badges on the street. No, no, no. That's a little hyper-populated. As I understand it, this arrest that took place wasn't impersonating a police officer. It was wearing a badge that there is a state law that forbids it. Yes. And when you show just there, there were badges on there. Yes. Yes, or rebadges. And none of them are similar to the one of the highway patrol. The highway patrol has seven different styles. But it doesn't say in the statute highway patrol badges. So it's badges. It's a badge of the highway patrol. No, it actually does. It is ARS 41-1754. There are two subsections to it. He was not arrested according to the ticket. They didn't cite which one it was. The first one is without authority, where's the badge of a number of the highway patrol or department of cars? A badge of similar design that would tend to deceive. Right. And tend to deceive would be the park that actually requires a. No one has said that those badges tend to deceive people to believe that it's a highway patrol badge
. Specifically, by, you know, I don't know. I've been there a zone a few times, but I couldn't have told you how many points there are. I know staff all badges have points. But that's number one. Number two is impersonate, remember the highway patrol. That was not charged, though, as I understand it. It was actually charged just generally as 41-1754 with no designation as to whether it was the first or the second clause. The lower court in its, minute entry or in its order on page seven found that the second one would not apply, that he could not. So we're back up, where's the badge? Correct. But then he, then there's a difference between a badge and a patch. There is a difference between a badge and a patch, and that's where, where we have the problem in this case. The lower court had said that if the court, if the police officers had read and misinterpreted the McLam case, which dealt with a city ordinance, that somehow they could have then been confused, that there may have been a law out there that prohibited the use of the insignia of the highway patrol. However, the mistake of law will not support a qualified immunity case. You can't say, well, I think there's a statute somewhere. They literally spent an hour and pulled out the book, and this was the best they could do after an hour was to say that the badge, they didn't say the badge is here. They said a patch is a badge, therefore we're going to give you a citation. They did not actually- What does the badge say on them? As far as badge is- This badge says Sheriff Nick, which would be, there are no DPS officers or DPS officers. If you look at the, on page seven of our brief, it actually has a picture of the bad, and it says officer. And this one says Sheriff Joe, which was intended also. So this is Sheriff Joe. You know, Joe, Sheriff Joe or Pyle is our Sheriff. I'm sorry, I interrupted. What did the court do with the word badge? Did it require it to be one of the metal badges? No. The court basically said because of the McLam case, which interpreted or held it in Arizona, or a Phoenix ordinance, a city ordinance, that prohibited the use of a badge or the insignia, that somehow, if the if hypothetically the police officers had read that case and misinterpreted
. But that was a different ordinance with a different interpretation. Correct. But here is there anything that shows that a badge is something made of metal? Well, we've discussed that. If you look at the definition in the Oxford English Dictionary, which is what the Judge cited in the lower order, it says that it is a sign of office. And if you look at the badge that the highway patrol uses on it, it says, officer, there's nothing about that. You know, I mean, it's very hard to already listen anyway to the badge. More than anyone referred to it as a badge prior to going to court. They refer to it as there were patches on the sleeves. And then there were, you know, either airport badges, time for badges. No one was good. I was having trouble with the magistrate judge, opinion. I was too. Sorry. Excuse me. It was very rude. I was having trouble with the magistrate judge's opinion because just as he's coming to this badge, and I think I bet he's going to talk about badge of courage or something, I got to page 12, and it was missing from my excerpt. If you have page 12, it didn't get into my excerpt, it made it, it didn't get into my college. This is a copy of all the words that I don't know. Thank you. Thank you. It's not a violation of that. All right. Thank you. Did the district court make any finding regarding the badges that were on the costume? No finding effect at all regarding whether they were similar to or nothing
. No discussion at all of the badges on the costume. No, they're because the badges. No, they didn't confuse anyone or tended to confuse people. When they are labeled Sheriff Joe, at the very cheap looking metallic badges with six points on them, no one argued that. No, no, no. They said that these were officials in CICIA of the highway control, and therefore they're banned. But the difficulty with that approach is that there is no, no one, no one had confused those with badges. No one claimed that they were badges. They were identified in the police report as being patches. They were discussed throughout the case as being patches, but then one of the, one of the Sheriff's officers or detectives said, well, I think a badge is a patch, a patch is a badge, a badge is a patch. That's what I think. So his subjective belief in deposition at page, at one page of his deposition, was used to then say, well, gosh, a badge or a patch could be a badge. But if that's the standard that we use, we stand or we base our system of justice on a foundation of sand, because the defendants can always say, I thought that that red was green. I thought that, and in this case, that is the complaint that we have. Can I see that page 12, please, mine is missing too, from the, I'll demonstrate, Judge. Good, well, you can give me the, I think you can give it to us. After you can give it to our clerk, she'll make photocopies of it. None of us got page 12. Thank you. There's, there seems to be a difference of opinion as to whether a badge is metal or whether it's something that's clothed. We actually, we actually just, yes. And what is the record show as to the, the understanding of the arresting police officers? The understanding of the arresting police officers who set forth in the deposition testimony, which we attach to the appendix of record, there were two significant, there were two significant portions of the, of the record, which was contained in the, in the index of records that we gave the court. The one is where I'm asking the officer, which was the arresting officer, what's his name? His name is Whitney. Whitney was the arresting officer, the other was, was officer Bailey
. But Whitney and Bailey reveal that they do understand the distinction. Right. That's in the deposition. Correct. And is that their position? Well, one of them is different. One of them said, I mean, I asked them, I said, where's your badge? He pulls out his badge. They say, well, okay, that's good. Did you have any other badges? I asked him about the uniform of the highway patrol, and I said, do they wear a badge? Yes, they wear a badge. Do they wear patches? Yes, they wear patches. So in doing that, what I was doing was priming the fact that he didn't have any problem understanding this is a badge. These are patches. You don't pull someone over and show them a patch. This is my city of Phoenix patch that says, and it doesn't have any inherent authority with it. Badges do. Patches don't. He could understand it when I was asking that question, but he did say on the record, I think that a patch is a badge. So it's commonly understood, at least from the evidence you got of the deposition. They know the difference between a badge and a patch on a uniform of an Arizona highway patrolman. What does that leave you as far as this case is concerned? Assuming you've established that. Assuming we've established that, then there is no good faith. No reasonable police officer could have made the distinct, could have failed to make the distinction between a badge and a patch. When reading this statute that said it is illegal to wear a badge of the highway patrol or the Department of Public Safety, because the Department of Public Safety, in essence, is the equivalent of the highway patrol. But there are people that we established in the record as long ago as the motion to dismiss, which the judge denied, which it's interesting, because he denied the motion to dismiss. But then when we get this subjective testimony, well, I think a patch is a badge, then he says, I'm going to reconsider and reverse the motion to dismiss
. I will now find in favor of the defendants based on the subjective testimony of the understanding of what a badge is. Is that the right test subjective for subjective testimony? No, it's objective. I mean, it is objective. It is not something that, because if it was subjective, I mean, it's funny because usually this cuts in the police officer's favor to say, well, subjectively, you know, out the fact that someone was, you can throw out so much if you get rid of the subjective portion of the test, but they have to live with it in some cases. And this is that case where they have to live with the objective test. And they can't just say, subjectively, I believe this or I believe that. It's an objective test. There is nothing that the defendants have pointed to in the record that would somehow indicate that a patch is a badge, that that patch carries with it the authority, any authority, or that it is a badge. And given that fact, the statute, which strictly says, and remember, this isn't in a use of course case, we often talk about the rapidly evolving situation and the fact that the police officer is put into a predicament that oftentimes he's not this one, they were entirely, they could have said, you know, take the shirt off, they could have said whatever they want, they spent an hour going to find the book so they could find this law. And then they chose to cite him after looking at that law that says it is illegal to wear a badge of the highway patrol or, too, it is illegal to impersonate with the intent to deceive. And they didn't designate on the actual ticket. They just cited him under either or both. But if you look at the police report, you know, they said we saw that this man, they also said from the waist up, he looked like a highway patrol officer from the side. But that kind of part, citation. Citation, eventually, it was dispensed. It was dispensed. It was dispensed. The police officers actually never even filed it. The officers, the highway, well, I don't know if it's inside the record, but the highway patrol officers said we're not going to back that and the city of the city of Phoenix police officers were given a memorandum that said they were not to support the citation by testimony. And so there's a memo that is contained in the record I believe under 16. It's a docket number 16, which shows the, I believe, shows the memorandum and this man heart can correct me. Councillor, you also, in addition to a Fourth Amendment complaint, have a First Amendment complaint. If I understand correctly, your client is not, is fairly well known in the Arizona area. And he was passing out campaign literature for Proposition 101
. Even aside from his garb, he was involved as an I understand your argument using his First Amendment rights. What do we do with that? Do we get to that or if we agree then the Fourth Amendment as a First Amendment comment or I understand even if you lose on the Fourth Amendment, you could still get a First Amendment claim? Well, it's my feeling that based, if we lose the Fourth Amendment claim, I think that you have a right not to be... I think if they had probable cause for the Fourth that they would have it for the First. I think if someone's committing a crime that you can arrest them, so I think it kind of fits under the umbrella of it without necessarily... I'm not too sure of that, but your claim is that your client's First Amendment rights were chilled by the way he was treated. How many officers were involved? At different times we have listed five because there was cheap, well there was cheap deputy Hander shot who's the one that called him out. And I understand there was seven around at that time. Yes, and then... Two, two, two rest one person who wasn't doing anything wrong other than wearing inappropriate garb if that's true and exercising his First Amendment rights. Correct, Your Honor. And also there was the statement that why don't you run so I can give chase, which is again chilling. I'm going to reserve the minute and a half that I have. Also, will you please find your there find the part of the record where this citation wasn't misdismissed? I can. I don't think you can give in excerpt a record citation. Thank you. Thank you. Council. Good afternoon, Your Honor
. So I'm Darrell Manhart. I represent the Apollees, the Sheriff Officers. Council? Yes. I read this local ordinance and it seems obvious that the purpose of the law is what the title says to be a little impersonation of a highway patrol officer. And it says, your highway patrol officers were pink underwear that chose? No, Your Honor. So no one could possibly think that this fella tar was a highway patrol officer. I believe that Detective Whitney and Officer Bailey, who was the one with him both at deposition, said they did after they saw his full outfit, they did not believe him to be an actual officer with a highway patrol. Although, although Officer Bailey, I should correct myself. I think he said he wondered whether he still wasn't sure whether he might be someone connected with the DPS who was somehow trying to spread his political message. Pardon? Was he joking or lying? No, Your Honor. Neither. Come on. Pink underwear. Oh, I'm not sure if he's a real cop or not. Well, Your Honor, I don't really mean to take this into a ludicrous state. Okay, let me ask you of this same thing basically, a little more kick-me-k-ly. The part of the statute here that applies apparently is, or a badge of similar design that was intended to deceive. Right? Is it, am I right? You're wrong, Your Honor. It is the part before that. Where is the badge of the highway patrol? The member of the highway patrol. Yes. Well, was he wearing a badge of the member of the highway patrol? Well, I thought he was only wearing patches that you get from the highway patrol next site and not a badge of the highway patrol. Your Honor, Detective Whitney testified that he believed a patch could constitute a badge. Why should I care what he believes? It's an objective test
. Your Honor, I mean, he may believe it's Wednesday, but it's actually Tuesday. There is no definition of badge as constituting only a metal shield, Your Honor, and the definition, the dictionary definition, I should say, just a statutory definition, the dictionary definition of badge, which the district court judge cited to, includes any insignia or representation of office and the judge. And I understand that, but we don't confer in advance. So I don't know if any of my colleagues have the same concerns that I do. And what got me about the statutory language is I thought, where is a badge? Well, everybody knows when a cop shows you his badge, it's a metal thing. It's not the patch. And if it was a real badge, they wouldn't be distributing it on the Internet. So I looked at the next part, a badge of similar design that would tend to deceive. And I thought, well, I can't see what those tin badges say in the pictures that were in the exhibits. And maybe I'd be fooled by them in some circumstances, but with the pink underwear, it seems like part of the context. And so they wouldn't tend to deceive. Is there any reason we can't consider the pink underwear as part of the context of whether it's a badge of similar design that would tend to deceive? Well, Your Honor, I don't think that's relevant to whether the officer could have reasonably believed a patch could constitute a badge. But certainly, if one looks at his entire outfit, if you consider that Mr. Tar could have simply buttoned a shirt and tucked that into tan pants, I think that people would have reasonably, I mean, layman could have reasonably confused. So whether he was a highway patrol officer. So don't we look at the totality of the circumstances as they actually existed? Yes, Your Honor. So the totality of the circumstances as they actually existed did not include the shirt being tucked into tan pants, and included pink underwear. Well, Your Honor, you're correct. And the totality of the circumstances also include from the evidence that city police officers who were in the restaurant were questioning Mr. Tar about where he got the patches. And they also called the highway patrol that the highway patrol officer who arrived is the one who directed the sheriff to that particular statute and stated that that's what it was a violation of. And it's not unreasonable for Detective Whitney to, based on those totality of circumstances, to reasonably find that a patch could be a badge. A patch could be a badge. But that's subsection one of section 41, 1754. Where's a badge? And as I understand it, the argument is that a patch can be a badge. But what do we do with the depositions of Whitney and Bailey, where they clearly know the difference between a patch and a badge? They wear uniforms, they wear badges. Your Honor, I believe your question is based on incorrect premise. Detective Whitney said that when he saw the full uniform, he did not believe Mr. Tar was a member of the highway patrol. He did not say that it was not wearing a badge. He said he was wearing a badge. That sounds the pinch. That's under section 2. If you could just stay with section 1 for me for a minute, without authority, where's a badge? I am under section 1, Your Honor. Well, you just talked about impersonating the highway patrol. That's section 2. I did not, Your Honor. Detective Whitney was asked at deposition, and I maybe should point out that the statement affacts with all of the rest of the deposition pages that's in the excerpt of record. I noticed over there we can, does not include any of the exhibits. So you do not have, if you're looking only at the excerpt of record, you are missing some of the deposition pages. If there are pages of the deposition, you'd like us to look at. Maybe you could tell us the page numbers. I believe this page is 67, 65 to 67. 65 to 67 of Whitney? Yes, Your Honor. Of the excerpts of record? I don't believe you're going to find all of those pages in the excerpt of record. We can't look at it. I've got 65, 66 and 67 of the transcript of Whitney in the excerpts. Is that what you're talking about? Yes, I believe I've given you the correct date and where you're on it
. Where's a badge? And as I understand it, the argument is that a patch can be a badge. But what do we do with the depositions of Whitney and Bailey, where they clearly know the difference between a patch and a badge? They wear uniforms, they wear badges. Your Honor, I believe your question is based on incorrect premise. Detective Whitney said that when he saw the full uniform, he did not believe Mr. Tar was a member of the highway patrol. He did not say that it was not wearing a badge. He said he was wearing a badge. That sounds the pinch. That's under section 2. If you could just stay with section 1 for me for a minute, without authority, where's a badge? I am under section 1, Your Honor. Well, you just talked about impersonating the highway patrol. That's section 2. I did not, Your Honor. Detective Whitney was asked at deposition, and I maybe should point out that the statement affacts with all of the rest of the deposition pages that's in the excerpt of record. I noticed over there we can, does not include any of the exhibits. So you do not have, if you're looking only at the excerpt of record, you are missing some of the deposition pages. If there are pages of the deposition, you'd like us to look at. Maybe you could tell us the page numbers. I believe this page is 67, 65 to 67. 65 to 67 of Whitney? Yes, Your Honor. Of the excerpts of record? I don't believe you're going to find all of those pages in the excerpt of record. We can't look at it. I've got 65, 66 and 67 of the transcript of Whitney in the excerpts. Is that what you're talking about? Yes, I believe I've given you the correct date and where you're on it. Detective Whitney. Was specifically asked by Mr. Robb is in his deposition. What's part of the statute he cited a matter? And by reading the language, he read the first portion of part one. The actuality read the language about who wears without authority a badge of the highway patrol. What did you say? What's that in chapter nine? Why don't you look at it? I believe it's pages 65 to 67, Your Honor. Why don't you look at it at the same time as us so we can make sure we're all together? I'm missing a page. It's chapter nine. Undercalve. I've got chapter nine, but I'm missing that page. On page 65, Your Honor. Yes, it's 65, 66. Was it a standard page? It should be right here. Yeah, you're the same. Yeah, that's the same. That's a good thing. Sorry about that. All right, go ahead. If you'll go to, I believe, sorry, I'm a little near sighted here. I think it's line 10 on page 65. Detective Whitney was asked what he'd written up as report as the basis for the citation. The language he's reading there is the first part of that statute. A person is guilty of a Class 1 misdemeanor who, without authority, wears the badge of a member of the highway control. That's what Detective Whitney, who signed the citation, said was the basis for the premise of your argument is we must accept whatever this particular cop thinks is what a reasonable cop would think
. Detective Whitney. Was specifically asked by Mr. Robb is in his deposition. What's part of the statute he cited a matter? And by reading the language, he read the first portion of part one. The actuality read the language about who wears without authority a badge of the highway patrol. What did you say? What's that in chapter nine? Why don't you look at it? I believe it's pages 65 to 67, Your Honor. Why don't you look at it at the same time as us so we can make sure we're all together? I'm missing a page. It's chapter nine. Undercalve. I've got chapter nine, but I'm missing that page. On page 65, Your Honor. Yes, it's 65, 66. Was it a standard page? It should be right here. Yeah, you're the same. Yeah, that's the same. That's a good thing. Sorry about that. All right, go ahead. If you'll go to, I believe, sorry, I'm a little near sighted here. I think it's line 10 on page 65. Detective Whitney was asked what he'd written up as report as the basis for the citation. The language he's reading there is the first part of that statute. A person is guilty of a Class 1 misdemeanor who, without authority, wears the badge of a member of the highway control. That's what Detective Whitney, who signed the citation, said was the basis for the premise of your argument is we must accept whatever this particular cop thinks is what a reasonable cop would think. Your Honor, my premise in what I just said to you was only in directing you or directing Judge Wallace to what did the officer believe was the violation? What was he citing him for? Right. So he was not citing him for impersonating with intent to deceive, although I make an argument that you might construe that in my brief. Detective Whitney did not say that. He only cited the, or directed attention to the first part of the statute as what he believed was the violation when he wrote the citation. And his testimony was that the patches are badges. Yes, Your Honor. And I believe, pardon me, I believe it's the very next page. Right. Lines 11 through 13. It starts, I believe, on line 5, but it continues from there. Yes, Your Honor. That's helpful, Counsel. It wasn't in my, I didn't have it in my, that page was missing. Certainly. So if a policeman justified and arrest, he was supposed to arrest a tall white man and he arrested a short black man. And if he said, well, you look tall and white to me, and he'd be entitled to qualify to immunity. Well, I'm not sure that I apologize that I don't see the connection between the two, Your Honor. All right. Let me ask you about something. You probably, you've argued there is a connection between, and that's the McLam case. In this case, I had trouble seeing it because McLam is wearing this police uniform. He's wearing police uniform, the real one with the real patches and the real badge and the real whistle. And he's got his police helmet visible in his political booth. Somebody complains to the police that this guy is handing out political literature in a police uniform
. Your Honor, my premise in what I just said to you was only in directing you or directing Judge Wallace to what did the officer believe was the violation? What was he citing him for? Right. So he was not citing him for impersonating with intent to deceive, although I make an argument that you might construe that in my brief. Detective Whitney did not say that. He only cited the, or directed attention to the first part of the statute as what he believed was the violation when he wrote the citation. And his testimony was that the patches are badges. Yes, Your Honor. And I believe, pardon me, I believe it's the very next page. Right. Lines 11 through 13. It starts, I believe, on line 5, but it continues from there. Yes, Your Honor. That's helpful, Counsel. It wasn't in my, I didn't have it in my, that page was missing. Certainly. So if a policeman justified and arrest, he was supposed to arrest a tall white man and he arrested a short black man. And if he said, well, you look tall and white to me, and he'd be entitled to qualify to immunity. Well, I'm not sure that I apologize that I don't see the connection between the two, Your Honor. All right. Let me ask you about something. You probably, you've argued there is a connection between, and that's the McLam case. In this case, I had trouble seeing it because McLam is wearing this police uniform. He's wearing police uniform, the real one with the real patches and the real badge and the real whistle. And he's got his police helmet visible in his political booth. Somebody complains to the police that this guy is handing out political literature in a police uniform. He really is wearing a police uniform. The cops come to the show and they say, don't do that. And he says, I have a right to do it. And you're saying that's just like this case. Well, Your Honor, I believe the point of lamb in the context of our case is, I should I guess back up and start with a negative. There's an absence of case law under the cited statute, 41, hyphen 1754. There is the McLam case, which is under a city ordinance and not this statute. Different, different words. You're correct, Your Honor. And Signe is, I would call. It includes. Different facts, different law. Well, Your Honor, it has some similarity of facts. Mr. McLam or retired officer McLam was using his uniform to advance a political proposition. A real one, no pink underwear. That's correct, Your Honor. And there's cases cited in our brief indicating why law enforcement agencies do not allow their officers to use uniforms for that purpose. And both detective Bailey and officer, I'm sorry, detective Whitney and officer Bailey indicated their awareness in the course of conducting what they'll ultimately do to this arrest that officers were not supposed to do that. That's one of the things that got their attention. But the connection here is, if, as Mr. Robinson has already told you, there is no case law showing detective Whitney why this would be unlawful. The only case law one can find that your honor doesn't find that close, but is McLam, which has some similarities in which a court did say it's improper to use the insignia or marks of authority of the officer. That's in a different, different law
. He really is wearing a police uniform. The cops come to the show and they say, don't do that. And he says, I have a right to do it. And you're saying that's just like this case. Well, Your Honor, I believe the point of lamb in the context of our case is, I should I guess back up and start with a negative. There's an absence of case law under the cited statute, 41, hyphen 1754. There is the McLam case, which is under a city ordinance and not this statute. Different, different words. You're correct, Your Honor. And Signe is, I would call. It includes. Different facts, different law. Well, Your Honor, it has some similarity of facts. Mr. McLam or retired officer McLam was using his uniform to advance a political proposition. A real one, no pink underwear. That's correct, Your Honor. And there's cases cited in our brief indicating why law enforcement agencies do not allow their officers to use uniforms for that purpose. And both detective Bailey and officer, I'm sorry, detective Whitney and officer Bailey indicated their awareness in the course of conducting what they'll ultimately do to this arrest that officers were not supposed to do that. That's one of the things that got their attention. But the connection here is, if, as Mr. Robinson has already told you, there is no case law showing detective Whitney why this would be unlawful. The only case law one can find that your honor doesn't find that close, but is McLam, which has some similarities in which a court did say it's improper to use the insignia or marks of authority of the officer. That's in a different, different law. Well, Your Honor, I think they're, they're close enough here. Your question suggests otherwise, but I think here that it, it supports the notion of detective Whitney and having concern about someone wearing an official uniform shirt with the official patches advancing a political cause and he has addition. In advancing a political cause makes it worse. Pardon? I mean, you, you think you, you keep mentioning that Tar was advancing a political cause. My thought was that makes Tar's case better because there's a first amendment aspect to it, but you keep mentioning it on the basis that it makes his case worse instead of better, I guess, by analogy to McLam. So you think the fact that Tar was advancing a political cause makes him more subject to arrest? Well, Your Honor. Is that right? No, Your Honor. I think I probably would have said, yes, that he was advancing a political cause. He was a hired actor advancing the political cause of his employer, high ground, ink of political consulting. Are you disputing that he was advancing a political cause or conceding it or claiming it or what? Well, Your Honor, I'm conceding that he's advancing the political cause of someone other than himself. I don't care if it's himself or somebody else. I want to know if it's political. It is, Your Honor. And there is, and I'm sorry if I'm going backwards in time, but you reminded me that I did not point out that Mr. Robbins said again here to argue today what he said in his briefs and I've pointed out before that there's no support in this record for it, which is that the sheriff was a spokesman for a counter proposition. It was pointed out in the district court that that was based upon speculation. Mr. Robbins may have something specific in mind, but he's never put it in this record. And today he's saying that too. And there is nothing in the record to show anything except that Mr. Tar was there for a political proposition and the position of anybody else is not shown by this record. Councillor, do you agree that this citation was never prosecuted? I agree, Your Honor. It was never turned in. What should we make of that? Your Honor, I gave you in the statement of facts in our brief what record there was on that
. Well, Your Honor, I think they're, they're close enough here. Your question suggests otherwise, but I think here that it, it supports the notion of detective Whitney and having concern about someone wearing an official uniform shirt with the official patches advancing a political cause and he has addition. In advancing a political cause makes it worse. Pardon? I mean, you, you think you, you keep mentioning that Tar was advancing a political cause. My thought was that makes Tar's case better because there's a first amendment aspect to it, but you keep mentioning it on the basis that it makes his case worse instead of better, I guess, by analogy to McLam. So you think the fact that Tar was advancing a political cause makes him more subject to arrest? Well, Your Honor. Is that right? No, Your Honor. I think I probably would have said, yes, that he was advancing a political cause. He was a hired actor advancing the political cause of his employer, high ground, ink of political consulting. Are you disputing that he was advancing a political cause or conceding it or claiming it or what? Well, Your Honor, I'm conceding that he's advancing the political cause of someone other than himself. I don't care if it's himself or somebody else. I want to know if it's political. It is, Your Honor. And there is, and I'm sorry if I'm going backwards in time, but you reminded me that I did not point out that Mr. Robbins said again here to argue today what he said in his briefs and I've pointed out before that there's no support in this record for it, which is that the sheriff was a spokesman for a counter proposition. It was pointed out in the district court that that was based upon speculation. Mr. Robbins may have something specific in mind, but he's never put it in this record. And today he's saying that too. And there is nothing in the record to show anything except that Mr. Tar was there for a political proposition and the position of anybody else is not shown by this record. Councillor, do you agree that this citation was never prosecuted? I agree, Your Honor. It was never turned in. What should we make of that? Your Honor, I gave you in the statement of facts in our brief what record there was on that. And that was the follow-up by Detective Whitney was despite what Department of Public Safety Officer Kimbrough had directed into it at the time. When afterwards they could not get any support from Department of Public Safety. The City of Phoenix Police Officers were directed not to give witness statements. Just as prosecutors make decisions about an exercise in the discretion not to pursue a case where they don't think there's a sufficient likelihood of conviction, the officers were not going to get support from anybody else here so the citation was not turned in. Is it true what the Blue Brief said that basically it took seven cops an hour to bust the guy in one of them refused? Your Honor, we're counting people who happened to be in the restaurant, I believe. If you recall, there were sheriff's deputies who would only happen to attend that restaurant to eat their lunch. They're not outside standing with Mr. Tar. There's Detective Whitney standing within the entire time. The record I believe is that Detective or Officer Bailey is going back and forth from outside where he is to inside. And there's testimony that's various DPS officers arrived having been called. But there are only the two sheriff's deputies who are out there with Mr. Tar outside the restaurant. There was another one at the restaurant, a supervisor in the department who called headquarters and said coming arrest Tar is something of that effect, right? A deputy chief Hendershot called to the Department of Public Safety and then he saw through the plate glass windows of the restaurant, the two sheriff's officers and stepped outside and motioned them to come over and told them to find out what's going on with that guy in the DPS uniform. Other than that, Your Honor, there's no evidence. Is the Hendershot testified that he thought it was a DPS uniform? I don't believe we have in the record any deposition testimony of deputy chief Hendershot. You're referring or you may be referring to a statement by a former sheriff's officer, Franks who... Former, that's the one that refused to arrest? No. Officer Frank says that Officer Whitney told him he wouldn't make the arrest. I'm sorry, Officer Bailey. According to Officer Franks, Officer Bailey said in his presence that he would not make the arrest. Officer Frank says he was afraid he was going to be asked to make the arrest
. And that was the follow-up by Detective Whitney was despite what Department of Public Safety Officer Kimbrough had directed into it at the time. When afterwards they could not get any support from Department of Public Safety. The City of Phoenix Police Officers were directed not to give witness statements. Just as prosecutors make decisions about an exercise in the discretion not to pursue a case where they don't think there's a sufficient likelihood of conviction, the officers were not going to get support from anybody else here so the citation was not turned in. Is it true what the Blue Brief said that basically it took seven cops an hour to bust the guy in one of them refused? Your Honor, we're counting people who happened to be in the restaurant, I believe. If you recall, there were sheriff's deputies who would only happen to attend that restaurant to eat their lunch. They're not outside standing with Mr. Tar. There's Detective Whitney standing within the entire time. The record I believe is that Detective or Officer Bailey is going back and forth from outside where he is to inside. And there's testimony that's various DPS officers arrived having been called. But there are only the two sheriff's deputies who are out there with Mr. Tar outside the restaurant. There was another one at the restaurant, a supervisor in the department who called headquarters and said coming arrest Tar is something of that effect, right? A deputy chief Hendershot called to the Department of Public Safety and then he saw through the plate glass windows of the restaurant, the two sheriff's officers and stepped outside and motioned them to come over and told them to find out what's going on with that guy in the DPS uniform. Other than that, Your Honor, there's no evidence. Is the Hendershot testified that he thought it was a DPS uniform? I don't believe we have in the record any deposition testimony of deputy chief Hendershot. You're referring or you may be referring to a statement by a former sheriff's officer, Franks who... Former, that's the one that refused to arrest? No. Officer Frank says that Officer Whitney told him he wouldn't make the arrest. I'm sorry, Officer Bailey. According to Officer Franks, Officer Bailey said in his presence that he would not make the arrest. Officer Frank says he was afraid he was going to be asked to make the arrest. He wasn't asked to. He's the one that says that deputy chief Hendershot made a statement of that's impersonating when he saw Mr. Tar. But other than that, there's nothing in the record about deputy chief Hendershot having any other role in this. Why would you need anything other than that to get past some re-judgment on whether Hendershot had a role in this? I'm confused, Your Honor. We were... We didn't see that Hendershot did have a role in it. Officer Franks only submitted an affidavit. There's no other testimony of his. Did he say it in affidavit that Hendershot had a role in it? I believe I've just repeated to you what he said, which was that detective... I'm sorry, deputy chief Hendershot had referred to his observation as that's impersonating. Some re-judgment was awarded to the defendant, so I may have misunderstood what your question was. And I'm supposed to be summing up here, Your Honor. The two questions I think under Sossier are whether there was a constitutional right violated and the second one whether clearly established law. I may have improperly lumped two items under the second discussion in the brief that maybe could have been separated differently, but here I believe there is a legitimate argument as to whether a patch constitutes a badge. The district court judge found that it could. There are some cases that not very many, and they're not exactly... In fact, there are nowhere near the search for answers to this, but I did cite a couple of cases in our brief where patches were treated as badges
. He wasn't asked to. He's the one that says that deputy chief Hendershot made a statement of that's impersonating when he saw Mr. Tar. But other than that, there's nothing in the record about deputy chief Hendershot having any other role in this. Why would you need anything other than that to get past some re-judgment on whether Hendershot had a role in this? I'm confused, Your Honor. We were... We didn't see that Hendershot did have a role in it. Officer Franks only submitted an affidavit. There's no other testimony of his. Did he say it in affidavit that Hendershot had a role in it? I believe I've just repeated to you what he said, which was that detective... I'm sorry, deputy chief Hendershot had referred to his observation as that's impersonating. Some re-judgment was awarded to the defendant, so I may have misunderstood what your question was. And I'm supposed to be summing up here, Your Honor. The two questions I think under Sossier are whether there was a constitutional right violated and the second one whether clearly established law. I may have improperly lumped two items under the second discussion in the brief that maybe could have been separated differently, but here I believe there is a legitimate argument as to whether a patch constitutes a badge. The district court judge found that it could. There are some cases that not very many, and they're not exactly... In fact, there are nowhere near the search for answers to this, but I did cite a couple of cases in our brief where patches were treated as badges. So I think it was reasonable for that to be concluded here, and if that's the case, there was probable cause under the statute to cite someone for wearing a badge of the highway patrol. So one of the things that bothers me, maybe you could clear it up, if there's a dispute as to whether a patch can be a badge under Section 1. When you have to have factual determination by the court, by the jury, in other words, isn't that a material fact that has not yet been decided, which would caution against having some rejudgment and let it go to trial? Well, Your Honor, there have been at least two cases of the gun to the U.S. Supreme Court. I believe where courts of appeals have made that distinction, and the Supreme Court said no in both of those, and I believe Sossier was one of them, that it is for the district court to make it a determination, at least even if you find that there's a fact question on whether the constitutional right was violated, you still have to go forward on the clearly established part and look at it in terms of what circumstances faced the officer. So it's not appropriate for the district court judge to say qualified immunity has to await trial while we decide whether a patch is a badge. And Your Honor, here we have, as far as what confronted Detective Whitney, a fact that an actual uniform shirt with official patches was being worn, that he is directed. I did have to await trial. I suppose one alternative is just to take the police defendants word for it, that a patch is a badge and a badge is a patch, and that treat that as a possible source of for qualified immunity, that a reasonable policeman could have thought so. Another possibility is if it doesn't need summary judgment to decide whether patches and badges are the same thing, that we could decide it and say what a reasonable policeman would think as opposed to what this policeman reports to a thought, claims to a thought while he's defending himself. Is that right? That is only right with respect to the first part of the Sossier test. This court could decide that it's a matter of law. You believe or you're going to announce that a patch cannot be a badge. I'm not advocating that obviously, but I think the way your question is posed to me, you can decide that so that in the future there's no confusion on that. That doesn't change the analysis with respect to the second question, which is whether under the circumstances that faced Detective Whitney, could he have reasonably believed that a patch could be a badge? Only if you can say as a matter of law that there is no single competent officer who could have reasonably believed that a patch could be a badge, that's the only circumstances under which qualified immunity may be denied. Oh, I thought it was no reasonable officer. I didn't remember it as being no single competent officer. Well, Your Honor, which is it? The language that says that it protects all that the plainly incompetent. You're inferring from that. I get it. Yes, Your Honor. Thank you, Council. Thank you
. So I think it was reasonable for that to be concluded here, and if that's the case, there was probable cause under the statute to cite someone for wearing a badge of the highway patrol. So one of the things that bothers me, maybe you could clear it up, if there's a dispute as to whether a patch can be a badge under Section 1. When you have to have factual determination by the court, by the jury, in other words, isn't that a material fact that has not yet been decided, which would caution against having some rejudgment and let it go to trial? Well, Your Honor, there have been at least two cases of the gun to the U.S. Supreme Court. I believe where courts of appeals have made that distinction, and the Supreme Court said no in both of those, and I believe Sossier was one of them, that it is for the district court to make it a determination, at least even if you find that there's a fact question on whether the constitutional right was violated, you still have to go forward on the clearly established part and look at it in terms of what circumstances faced the officer. So it's not appropriate for the district court judge to say qualified immunity has to await trial while we decide whether a patch is a badge. And Your Honor, here we have, as far as what confronted Detective Whitney, a fact that an actual uniform shirt with official patches was being worn, that he is directed. I did have to await trial. I suppose one alternative is just to take the police defendants word for it, that a patch is a badge and a badge is a patch, and that treat that as a possible source of for qualified immunity, that a reasonable policeman could have thought so. Another possibility is if it doesn't need summary judgment to decide whether patches and badges are the same thing, that we could decide it and say what a reasonable policeman would think as opposed to what this policeman reports to a thought, claims to a thought while he's defending himself. Is that right? That is only right with respect to the first part of the Sossier test. This court could decide that it's a matter of law. You believe or you're going to announce that a patch cannot be a badge. I'm not advocating that obviously, but I think the way your question is posed to me, you can decide that so that in the future there's no confusion on that. That doesn't change the analysis with respect to the second question, which is whether under the circumstances that faced Detective Whitney, could he have reasonably believed that a patch could be a badge? Only if you can say as a matter of law that there is no single competent officer who could have reasonably believed that a patch could be a badge, that's the only circumstances under which qualified immunity may be denied. Oh, I thought it was no reasonable officer. I didn't remember it as being no single competent officer. Well, Your Honor, which is it? The language that says that it protects all that the plainly incompetent. You're inferring from that. I get it. Yes, Your Honor. Thank you, Council. Thank you. I'd like to address you had asked Judge Robinson for the citation. It is in citation or division 9 of the brief, and it supports the end of the designation of record. It's actually, I thought it was in the response to a motion to dismiss, but in fact, it was in the defendant's motion for protective order, docket number 32, and it's towards the end of that. It's after the. I'll figure a time on that. I'll find it. Okay. Thank you, Your Honor. The second thing I'd like to address is the courts, the deposition that Mr. Mannhart read, because at page 40 of the same deposition, it makes it obvious that Whitney is actually being pretestual when he claims that a patch is a badge, because at page 40, I said, and I'm talking about the DPS shirts, are there patches on those shirts? Absolutely. Describe the patches, if you would. They're gold, red, and blue in color, and I believe they're shaped in the seal of the state image. Then I said later, at lines 13, in terms of the uniforms, they have badges, don't they? Yes. What do they look like? Multi-point gold badge. How many points? It's more than one than I have. MCSO has six DPS, has seven. That's at page 40 of Whitney's. He knows what a badge is. He knows what a patch is. He knows the difference. It's only when he wants to get this guy that he has some confusion. Finally, in the 13 seconds I have remaining, in the McLam case, it actually clearly makes our point, because in McLam, the officer was wearing retirement badge and retirement uniform with patches from the City of Phoenix. The court distinguished the officer's retirement badge from the insignia shoulder patches at page 268, clearly saying there's a difference between these two. In fact, the lower court dismissed the charge related to the retirement badge because it wasn't actually a real badge
. It was a retirement badge and found that the defendant had only violated the City ordinance by wearing the shoulder patches with the official insignia. Therefore, cementing the difference between a patch and a badge rather than creating confusion. Thank you, Yarnes. Thank you, Council. Car versus Maricopa County is submitted. And we are adjourned until tomorrow morning at nine. All right. This work with this session stands here