[00:00:07] Speaker 00:
Counsel for Appellant, please approach and proceed when ready.

[00:00:12] Speaker 01:
Thank you.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 01:
May it please the Court, Maggie McCletchy for Appellant and Plaintiff, Nebu Solomon.

[00:00:21] Speaker 01:
The principles underlying this case are the facts that a member of the public does have a right to disagree with the police and officers are not entitled to stop, detain,

[00:00:32] Speaker 01:
arrest or use force against citizens to make the citizen listen to them until the citizen agrees.

[00:00:42] Speaker 01:
Particularly when viewed in the light most favorable to Mr. Solomon, the record is in fact full of evidence of the officers being motivated by Mr. Solomon's disagreement with them.

[00:00:55] Speaker 01:
Mr. Solomon was ultimately right.

[00:00:58] Speaker 01:
The fashion show mall sidewalk at issue where he was trying to film the protest from is a public forum.

[00:01:05] Speaker 01:
Common sense, case law, and the district court's ultimate holding reinforce that he was right and that the officers was wrong.

[00:01:13] Speaker 01:
But I want to be clear.

[00:01:15] Speaker 01:
Even if Mr. Solomon had been incorrect, members of the public have a right to be wrong and voice their dissent, even with law enforcement.

[00:01:25] Speaker 02:
The district court

[00:01:26] Speaker 02:
Can you explain that?

[00:01:28] Speaker 02:
So who is right?

[00:01:30] Speaker 02:
Is that sidewalk owned by the fashion show mall or not?

[00:01:36] Speaker 01:
It is owned.

[00:01:37] Speaker 01:
The land under that sidewalk is owned by the fashion show mall.

[00:01:41] Speaker 02:
Okay.

[00:01:41] Speaker 02:
And then why is it a public forum?

[00:01:43] Speaker 02:
Why did the district court rule that a public forum?

[00:01:45] Speaker 01:
The district court ruled that it was a public forum because there's an easement for the public.

[00:01:50] Speaker 01:
Metro policy makes clear, and that's at 2ER 230.

[00:01:55] Speaker 01:
that where there's an easement, it's a public sidewalk.

[00:01:58] Speaker 01:
The Venetian and the Fremont Street cases also, that's clearly established, Ninth Circuit case law, that you do have a right to free speech in public forums.

[00:02:09] Speaker 01:
And the private ownership of the land underneath the sidewalk does not, in and of itself, change the character of a public forum.

[00:02:18] Speaker 03:
Does the nature of the First Amendment claim turn on whether the officers were correct?

[00:02:24] Speaker 03:
Apparently they thought that this was a private property and they could eject people.

[00:02:31] Speaker 03:
Does the nature of the First Amendment claim turn on what they knew or understood?

[00:02:35] Speaker 01:
No, it doesn't because there's multiple First Amendment claims at issue.

[00:02:40] Speaker 01:
First is his right to be there.

[00:02:43] Speaker 01:
His right to be there and to fill.

[00:02:44] Speaker 01:
does turn on whether it's a public forum, but his right to disagree with them does not depend on whether it's a public forum.

[00:02:53] Speaker 01:
The record is very clear and the district court made numerous errors.

[00:02:59] Speaker 03:
If someone is on private property and the owner wants that person to leave the property and the police are there, and that person wants to disagree with the police, you don't have a First Amendment right to trespass, right?

[00:03:12] Speaker 03:
Doesn't it hinge on the fact that it's a public forum?

[00:03:15] Speaker 01:
I agree with you that you don't have a right to remain.

[00:03:18] Speaker 01:
But Nevada's trespass statute, which is NRS 207.200,

[00:03:23] Speaker 01:
requires, unless there's signs posted, and the record is undisputed that there were no signs posted, no one there would have any reason to know this is public.

[00:03:32] Speaker 01:
This is private, this is allegedly private property.

[00:03:34] Speaker 01:
There's a protest across the street, the video, there's ample body cam footage in the record.

[00:03:39] Speaker 01:
The video makes, clearly shows that people are walking up and down this sidewalk, that it's open to the public,

[00:03:47] Speaker 01:
right to the Las Vegas Strip.

[00:03:50] Speaker 01:
But the Nevada Trespass Statute requires willfully remaining after being given a sufficient warning.

[00:03:58] Speaker 02:
In her order... Well, why didn't that happen here?

[00:04:01] Speaker 02:
He was asked to leave.

[00:04:02] Speaker 02:
He did not leave immediately.

[00:04:04] Speaker 02:
And so he does, it seemed, you know, if the officer was mistaken about the, you know, public foreign issue, but it seems to have violated the trespass law.

[00:04:13] Speaker 01:
So he, in fact, when he was accosted, grabbed by Officer Freiman, the district court found that he was setting up his camera elsewhere.

[00:04:25] Speaker 01:
When you look at that body cam footage, and it's exhibit three, around, I think, 120, he's actually walking down and walking towards the Las Vegas.

[00:04:37] Speaker 02:
But didn't he immediately before that say, I'm just going to set up over there?

[00:04:41] Speaker 01:
So he did say, I'm going to set up over there.

[00:04:43] Speaker 02:
And then walked over there.

[00:04:45] Speaker 02:
Wouldn't a reasonable officer interpret that as saying, I'm going to set up over there?

[00:04:50] Speaker 01:
Well, a trespass warning has to be specific about what is and isn't private property.

[00:04:58] Speaker 02:
I'm pretty sure he was warned that that area also was not

[00:05:04] Speaker 01:
The warning, there is no record in the evidence that he was given a formal trespass warning until he was in the van on his way to jail.

[00:05:13] Speaker 01:
And the record where he was was right in front of the entrance.

[00:05:18] Speaker 01:
And his understanding was that perhaps further down the sidewalk, he could fail.

[00:05:23] Speaker 00:
Right.

[00:05:24] Speaker 00:
Council, may I ask you, did the officers advise him that he was obstructing the sidewalk?

[00:05:31] Speaker 01:
They later contended that he could have been obstructing the public sidewalk if it had in fact been a public sidewalk.

[00:05:40] Speaker 01:
But you can't be obstructing a non-public sidewalk.

[00:05:44] Speaker 01:
And in fact, it's disputed whether he was actually obstructing the sidewalk because when you see the body cam footage, people are able to pass by and it's actually the security guards and police officers

[00:05:55] Speaker 01:
that are taking up most of the sidewalk.

[00:05:58] Speaker 03:
Yeah, I was going to ask you about that because it seems as if defendant's motion for summary judgment raised this issue about the size of the tripod and whether it was blocking the sidewalk.

[00:06:07] Speaker 03:
But I never saw the police officers rely on any of that in order to tell them to to move.

[00:06:13] Speaker 03:
It was just that it was private property.

[00:06:15] Speaker 03:
And so my question is, can the government rely on a post hoc explanation that was never fleshed out at the moment?

[00:06:23] Speaker 01:
No, they can't.

[00:06:24] Speaker 01:
And I think the important point, too, is there is sufficient evidence in the record that, and this goes to the Velasquez case and other authorities that we cite, with regard to the probable cause or reasonable suspicion.

[00:06:38] Speaker 01:
And I want to be clear.

[00:06:39] Speaker 01:
The district court found that grabbing him was appropriate force because it was to effectuate an arrest.

[00:06:46] Speaker 01:
So I believe that when Officer Freiman grabbed him when Solomon was walking away,

[00:06:53] Speaker 01:
I think that that was a, that was not a terry stop, that was an arrest.

[00:06:58] Speaker 01:
But in any case, the district court absolutely erred.

[00:07:03] Speaker 02:
Can I, I'm sorry, I always thought, this is a Fourth Amendment case, correct?

[00:07:06] Speaker 01:
And a First Amendment case.

[00:07:08] Speaker 02:
Yes, but isn't it true that under the Fourth Amendment analysis, it's objective reasonableness and the officer's subjective intent is not relevant?

[00:07:16] Speaker 01:
That is correct.

[00:07:17] Speaker 01:
It's objective reasonableness based on information known

[00:07:20] Speaker 01:
to the officers, and that's an incredibly important point.

[00:07:24] Speaker 02:
But the ad hoc nature of the justification, it doesn't really matter if it's objectively reasonable for that to be a reason.

[00:07:32] Speaker 01:
It does matter to whether or not there's evidence in the record that their actual motivation

[00:07:39] Speaker 01:
was to retaliate against, was motivated by speech.

[00:07:41] Speaker 01:
Under the first amendment part.

[00:07:42] Speaker 01:
Correct.

[00:07:43] Speaker 01:
So it's relevant on that problem.

[00:07:44] Speaker 01:
Got it.

[00:07:45] Speaker 01:
But in terms of objective reasonableness, there's an absolute dispute about whether he was actually obstructing the sidewalk.

[00:07:53] Speaker 02:
You know, I looked at the video.

[00:07:54] Speaker 02:
I mean, if you were in a wheelchair, could you have gone through that sidewalk?

[00:07:58] Speaker 01:
When the officers were there and the fashion show mall security guards were there?

[00:08:01] Speaker 02:
No, with the tripod set up.

[00:08:03] Speaker 01:
It's not clear.

[00:08:04] Speaker 01:
I don't think you get an expansive view of the entire sidewalk.

[00:08:07] Speaker 01:
And there was a lot of activity that day.

[00:08:10] Speaker 01:
But here's, I think, the important point about trespass.

[00:08:16] Speaker 01:
What Officer Freiman told him was, you can't film here.

[00:08:20] Speaker 01:
The fashion show mall said, you can't film here.

[00:08:22] Speaker 01:
So Solomon does not willfully remain.

[00:08:27] Speaker 01:
He's not entrenched as the district court found.

[00:08:30] Speaker 01:
He picks up his equipment and keeps walking down the street towards where he thinks he can film.

[00:08:35] Speaker 01:
Does he walk without any comment?

[00:08:39] Speaker 01:
Well, Officer Freiman follows him.

[00:08:42] Speaker 01:
And Officer Freiman at that point says this additional, it's private all the way down here too.

[00:08:49] Speaker 01:
At that point,

[00:08:51] Speaker 01:
Solomon does not stop and say, I'm going to film here anyway, Officer Freiman.

[00:08:56] Speaker 01:
He is continuing to walk.

[00:08:59] Speaker 01:
But he says, really?

[00:09:00] Speaker 01:
This is not a public sidewalk.

[00:09:02] Speaker 01:
And I think he points at somebody walking by.

[00:09:04] Speaker 00:
Is he walking in the direction that the police directed him to walk?

[00:09:11] Speaker 01:
So the police never directed him.

[00:09:13] Speaker 01:
Later on, Officer Freiman.

[00:09:14] Speaker 00:
Oh, I thought they said, you can film over there where

[00:09:18] Speaker 00:
at the Trump side, that they're allowing protests over there.

[00:09:21] Speaker 00:
They didn't say that?

[00:09:22] Speaker 01:
They did not say that to him until he was put in handcuffs and taken to a different location, and he was surrounded by police officers.

[00:09:31] Speaker 01:
When he was originally in front of the Fashion Show mall, Officer Freiman never says, by the way, you can go across the street and film.

[00:09:40] Speaker 01:
He never at all says that.

[00:09:41] Speaker 01:
And when Officer Freiman informs Solomon

[00:09:48] Speaker 01:
This part's a public sidewalk, too.

[00:09:50] Speaker 01:
Again, Solomon does not stop.

[00:09:53] Speaker 01:
He's continuing to walk.

[00:09:55] Speaker 01:
It's unclear to me how.

[00:09:56] Speaker 02:
I'm sorry.

[00:09:57] Speaker 02:
So when he picked up the tripod and left after the first interaction, you agree that he was going to set up the tripod on that same sidewalk?

[00:10:07] Speaker 01:
He was going to on the sidewalk further down.

[00:10:11] Speaker 01:
He does later.

[00:10:11] Speaker 02:
So how is that not the definition of trespass?

[00:10:15] Speaker 01:
First of all, because it's not a private sidewalk.

[00:10:22] Speaker 00:
But the officers didn't know that at the time.

[00:10:24] Speaker 00:
The problem is what's in the officer's understanding at the time?

[00:10:30] Speaker 00:
Did the officers have a reasonable belief that it was private property?

[00:10:35] Speaker 01:
The officers, according to Metro policy,

[00:10:39] Speaker 01:
They knew there was an easement for the public, and according to Metro policy, where there is an easement, the public is allowed- The officers on the scene knew there was an easement?

[00:10:50] Speaker 01:
The officers on the street, I would presume they knew about the policy, but the officers on the street, here's the additional important fact.

[00:10:58] Speaker 01:
We don't assume that what the officers say is the reason for the stop.

[00:11:03] Speaker 01:
is the reason for the stop, when the record is full of facts showing that the officer said, the problem was you weren't listening to me.

[00:11:12] Speaker 01:
The problem was stop, stop.

[00:11:14] Speaker 02:
That was well after the fact, right?

[00:11:17] Speaker 01:
No, immediately when he grabs, when Officer Fryman, Sergeant Fryman

[00:11:23] Speaker 01:
grab Solomon.

[00:11:24] Speaker 01:
He says, stop, stop.

[00:11:26] Speaker 01:
He says, you're about to get in the back of a police car.

[00:11:28] Speaker 01:
Right.

[00:11:28] Speaker 01:
And it follows.

[00:11:29] Speaker 02:
Because he was setting up on private property after he was told that this is private property.

[00:11:32] Speaker 01:
He was not setting up.

[00:11:33] Speaker 01:
He was walking.

[00:11:35] Speaker 01:
Solomon later testified.

[00:11:36] Speaker 02:
But he was, but we all agree that that was his intent, to walk down the sidewalk and set up.

[00:11:39] Speaker 03:
Wait, can I, is that,

[00:11:41] Speaker 03:
an undisputed issue that he was going to set up, because I thought that they detained him before he set up again.

[00:11:49] Speaker 01:
They did detain him before he set up again.

[00:11:51] Speaker 03:
And I think Officer Freiman touched his arm and said, don't touch my arm.

[00:11:56] Speaker 03:
And Officer Freiman was wanting to tell him why he believed that this was private property.

[00:12:02] Speaker 03:
So to me, it raises a triable question whether he was complying with the officers or not, because he hadn't actually set up.

[00:12:08] Speaker 03:
But I just want to make clear, are you conceding that he was going to set up further down the sidewalk?

[00:12:14] Speaker 01:
Yes.

[00:12:15] Speaker 01:
At that point, before Officer Freiman says to him, this additional part of the sidewalk is also private property, when Officer Freiman tells him that, he expresses surprise.

[00:12:27] Speaker 01:
And Officer Freiman grabs him.

[00:12:30] Speaker 01:
The district court found that he was setting up again.

[00:12:33] Speaker 01:
He was not.

[00:12:34] Speaker 02:
And Officer Freiman... So we agree it's undisputed that he had the intent to set up again, but then he was stopped before he was able to do so.

[00:12:41] Speaker 01:
But it is disputed whether Officer Freiman knew that he was setting up a GAN.

[00:12:45] Speaker 01:
And it is disputed whether him setting up a GAN is what motivated Officer Freiman or whether it was Solomon's disagreement with him.

[00:12:54] Speaker 01:
Because Solomon was walking away.

[00:12:56] Speaker 01:
And it's actually hard for me to understand how anybody could have complied with the trespass warning.

[00:13:03] Speaker 01:
Under Nevada law, you have a warning.

[00:13:05] Speaker 01:
It's supposed to be specific.

[00:13:06] Speaker 01:
I don't think there was a specific warning.

[00:13:07] Speaker 02:
You think he was entitled to a second warning, essentially?

[00:13:10] Speaker 01:
I think he was entitled to a more specific warning, and he was also about exactly what the area was.

[00:13:16] Speaker 02:
I thought at the first interaction, wasn't he told that the entire sidewalk is private property?

[00:13:20] Speaker 01:
That is not in the record.

[00:13:21] Speaker 01:
He's told that he can't film there on the sidewalk.

[00:13:24] Speaker 01:
What the sidewalk is and how far down the private property goes was not clear.

[00:13:30] Speaker 01:
He later on gets a very specific trespass notice, but it's not until after he's in the van being transported.

[00:13:37] Speaker 01:
being transported to the jail.

[00:13:39] Speaker 01:
Further, and he certainly, he moved down the sidewalk because he believed that they meant that area was private.

[00:13:46] Speaker 01:
He didn't think they meant further down was still private.

[00:13:49] Speaker 01:
And that's all clear by the fact that when he's walking that way, and Sergeant Freiman says to him, this is all private too, he says, really?

[00:13:57] Speaker 01:
He doesn't stop and say, really, I'm gonna film here anyway.

[00:14:00] Speaker 01:
He says, really?

[00:14:01] Speaker 01:
And he points to someone walking by.

[00:14:03] Speaker 01:
He points out that there's no signage.

[00:14:05] Speaker 01:
and that it's unclear to him.

[00:14:06] Speaker 00:
Counsel, did Mr. Solomon initiate the contact with Sergeant?

[00:14:12] Speaker 01:
Mr. Solomon testifies that he could, I believe that he thinks he initiated the contact.

[00:14:16] Speaker 01:
Freiman indicates that actually in his narrative, which is at 432 through 434,

[00:14:22] Speaker 01:
Freiman indicates that it was Fremont Street security officers that brought him over.

[00:14:27] Speaker 01:
So undisputably, he was not committing trespass.

[00:14:31] Speaker 01:
I'd like to reserve the remainder of my time.

[00:14:33] Speaker 00:
As a matter of law, he was not, because it was public property.

[00:14:36] Speaker 00:
But that's not the point.

[00:14:37] Speaker 00:
The point is whether or not they had a reasonable belief that he was committing trespass.

[00:14:42] Speaker 00:
And we'll give you a minute or two for rebuttal.

[00:14:44] Speaker 00:
Thank you.

[00:14:44] Speaker 01:
Thank you very much.

[00:15:02] Speaker 04:
Thank you, Your Honours.

[00:15:03] Speaker 04:
May it please the court, Craig Anderson on behalf of the Las Vegas Metropolitan Police Department Defendants.

[00:15:09] Speaker 04:
I'll start with Judge Sanchez's question about the probable cause issue with the setting up.

[00:15:14] Speaker 04:
It is undisputed by plaintiff in his deposition and in his narrative on ER 206-209 that his intent was to set up.

[00:15:23] Speaker 04:
That is what he testified to on 3ER 379 and what he said in his, I guess, voluntary statement, for lack of a better term.

[00:15:30] Speaker 03:
You mean setting up further down the road after the initial interaction?

[00:15:33] Speaker 04:
Yes.

[00:15:33] Speaker 04:
And what you have to keep in mind there was in Sergeant Freiman's body-worn camera at 35 seconds to a minute and three, he tells him that they are allowing filming at the Trump on this side, they're allowing here.

[00:15:47] Speaker 04:
So he was explaining that to him at the start of the encounter.

[00:15:51] Speaker 04:
But that way, to comply with that, Mr. Solomon would have to go west.

[00:15:56] Speaker 04:
He chose to go east, despite being told that the whole sidewalk was.

[00:16:00] Speaker 04:
He says, I was going to set up, that was my intent.

[00:16:02] Speaker 04:
Now, what probable causes is whether someone is committing a crime or about to commit a crime.

[00:16:07] Speaker 04:
Does an officer have a reasonable belief that a suspect is committing a crime or is about to?

[00:16:12] Speaker 04:
Here, with Solomon's actions, it would fall within the, at least the reasonable suspicion to detain him.

[00:16:19] Speaker 04:
to investigate what he was further doing at that point.

[00:16:23] Speaker 04:
And so to answer your question, Judge Sanchez, he doesn't need to actually be setting up.

[00:16:29] Speaker 04:
There has to be a reasonable belief by the officer that that is his intent, that he is about to commit a crime, which he admits that was his intent.

[00:16:35] Speaker 02:
And didn't he say something as a matter of fact, to frame him, that I'm going to set up?

[00:16:39] Speaker 04:
I'm going to set it further down, which was going east when he was told that he could film if he went west.

[00:16:44] Speaker 03:
Well, let me, you know, here's my concern about, I do think there are tribal issues here because there's also evidence about whether Officer Freiman or Sergeant Freiman thought he was an agitator, was questioning whether he was in fact a photojournalist, and that there were other people that were filming that allegedly weren't ejected.

[00:17:06] Speaker 03:
And so, weren't there other

[00:17:10] Speaker 03:
Wasn't there other evidence raised that this might not have been a content-neutral restriction on his speech?

[00:17:17] Speaker 04:
No.

[00:17:17] Speaker 04:
So to answer your questions there is what Sergeant Freiman testified to was one of his thoughts was he might be an agitator.

[00:17:24] Speaker 04:
I mean, he might have thought he might be a murderer.

[00:17:25] Speaker 04:
I mean, these are just an officer's thoughts.

[00:17:27] Speaker 04:
He didn't say that's why he acted.

[00:17:29] Speaker 04:
And he clarifies in his deposition he was not an agitator.

[00:17:32] Speaker 04:
But when I first saw it, that was a thought.

[00:17:34] Speaker 04:
That's what we could be dealing with.

[00:17:36] Speaker 04:
And the second part of your question

[00:17:40] Speaker 03:
Well, I mean, I guess because the district court said

[00:17:43] Speaker 03:
It found no tribal issues because it was private property and the officers did not want any protesters regardless of the subject of the protest.

[00:17:52] Speaker 03:
That was the district court's analysis.

[00:17:54] Speaker 03:
But he wasn't a protester, right?

[00:17:56] Speaker 03:
He was there to film an actual protest.

[00:17:59] Speaker 04:
The fashion show mall did not want anyone protesting or stopping to film on their property.

[00:18:04] Speaker 04:
They were enforcing it all day.

[00:18:05] Speaker 04:
As you see with Officer Sergeant Freiman in a prior interaction with a Caucasian individual where they have a

[00:18:13] Speaker 04:
similar interaction where he complies and leaves the property.

[00:18:17] Speaker 03:
So fashion show mall appears to have been... I actually think that factor cuts against you because that person told the police officer to go f off and apparently was told multiple times over a longer exchange you can't be here and yet he wasn't arrested.

[00:18:39] Speaker 03:
And, you know, I mean, it kind of lends some credence to the equal protection claim, at least.

[00:18:45] Speaker 04:
Because he eventually left and did what the officer suggested.

[00:18:48] Speaker 04:
When he went east, he was actually going in direct contravention of what the officers told him he could do.

[00:18:53] Speaker 00:
And then as he says, he was still planning on setting up this other... So are you saying the other person, the Caucasian person, went west as opposed to east?

[00:19:01] Speaker 04:
He went across the street, yes.

[00:19:03] Speaker 04:
Went across the street.

[00:19:03] Speaker 04:
Yeah, in the direction that he was told.

[00:19:05] Speaker 02:
And, I mean, what that shows...

[00:19:07] Speaker 02:
apologized because he thought that the person he tilted F off, he thought it was a security guard, not a police officer, and immediately apologized when he realized it was a police officer.

[00:19:17] Speaker 04:
Correct.

[00:19:18] Speaker 04:
And, you know, obviously the officers were dealing with a lot of verbal abuse from many people that day, and, you know, that's what they do.

[00:19:25] Speaker 03:
But isn't that the point?

[00:19:26] Speaker 03:
I mean, that's because the court is saying there are no genuine disputes of material fact about these issues.

[00:19:33] Speaker 03:
and one could construe the apology and all these different things in certain ways, or they might be construed as animus or motive to discriminate, or you're restricting Solomon's speech to disagree with officers.

[00:19:50] Speaker 03:
Why aren't there tribal issues here in your view?

[00:19:53] Speaker 04:
And that brings up another good point, and I think I'll answer it this way.

[00:19:56] Speaker 04:
When we talked about the tripod being set up, he was not

[00:19:59] Speaker 04:
charged with that, but probable cause can later be pled to a different crime.

[00:20:04] Speaker 04:
If you're charged with a crime, later, what matters is whether there's an objectively reasonable basis for any crime.

[00:20:11] Speaker 04:
And so where he was obstructing the sidewalk, that is a relevant matter for this court in this case.

[00:20:19] Speaker 03:
Fair enough, but there was no evidence as to whether it was actually an obstruction, right?

[00:20:23] Speaker 03:
The court did not take any evidence, one way or the other, whether the tripod was impeding people's progress on the sidewalk, whether they had to step out on the street.

[00:20:33] Speaker 03:
I mean, there are moments when I see the video and parts of the sidewalk, that south side, are pretty empty.

[00:20:37] Speaker 03:
And so I just think that the court may have jumped the gun in deciding that there were no genuine issues as to whether there was obstruction, you know, impeding of the sidewalk,

[00:20:48] Speaker 03:
Or what was the basis for the arrest?

[00:20:51] Speaker 03:
It just seems like a lot of differing views about this.

[00:20:54] Speaker 04:
Understood, and with that analysis there, I mean, what Mr. Solomon said was his tripod was larger, estimated two and a half feet on a five foot sideway, so half the sidewalk, which forced people into a rocky uphill battle.

[00:21:07] Speaker 04:
That would be more of a qualified immunity issue as to what law would have put these officers on notice that is not obstruction.

[00:21:13] Speaker 04:
you know, that someone who's blocking half the sidewalk, and then of course he's going to be standing behind that if he had the opportunity to film, that he would then be taking up more space.

[00:21:21] Speaker 04:
He never really had the opportunity to film, and I'll grant you that, but it would have been taking up almost the entire sidewalk had he been behind the camera operating it while he filmed.

[00:21:29] Speaker 03:
And I don't dispute that there could be viable qualified immunity issues down the road, but the district court never engaged in a qualified immunity analysis.

[00:21:38] Speaker 03:
All we have before us is, are there dis-triable, dis-genuine disputes of material fact

[00:21:43] Speaker 03:
on these various claims.

[00:21:45] Speaker 04:
Yes, the district court said it was not going to the second prong of qualified immunity because it found no constitutional violation, but you are looking at this de novo, and you could find it under the second prong of the qualified immunity analysis.

[00:21:56] Speaker 00:
What would be your argument under the second prong?

[00:22:00] Speaker 04:
Well, it depends on what we're talking about.

[00:22:02] Speaker 04:
If we're talking about the obstruction, it would be what law would be out there to tell an officer that someone operating a camera that occupies more than half of a sidewalk as not obstructing?

[00:22:12] Speaker 04:
what law would tell an officer that that is not obstruction when you have that much of the sidewalk being taken and then remember there's a road on one side of the sidewalk and then a rocky uphill slope which you would not want people walking up on the other.

[00:22:24] Speaker 04:
So on that it would be that on I mean the others I think are pretty clear that if we even

[00:22:33] Speaker 04:
So I think that also with qualified immunity, one thing that's important is whether it's a public or private forum, I think the officers would be entitled to qualified immunity that they made a reasonable mistake in assuming that it was a private property that they could be trespassed on.

[00:22:48] Speaker 04:
And the judge essentially said that, where she said, I'm going to find this as a public forum, but I agree the officers would not have known six years ago that to be the case.

[00:22:56] Speaker 04:
So that would make their decision to enforce that law a reasonable mistake of fact under the second prong.

[00:23:02] Speaker 03:
Well, I mean, I guess we're getting ahead of ourselves on qualified immunity.

[00:23:05] Speaker 03:
Let me ask you this about ample alternative channels.

[00:23:08] Speaker 03:
Plaintiff's argument is he was arrested within two minutes of his interaction with Sergeant Freiman.

[00:23:15] Speaker 03:
So while in theory he could have been able to do something else while he was disagreeing with the officers about the public nature of the sidewalk, he got arrested.

[00:23:24] Speaker 03:
So he never actually had

[00:23:26] Speaker 03:
an ample alternative channel to set up somewhere else.

[00:23:29] Speaker 03:
Why isn't that a tribal issue for the jury to decide?

[00:23:33] Speaker 04:
Because of what we've already talked about.

[00:23:34] Speaker 04:
He was notified that people were filming on the other side of Trump Road, that they were allowed there, and then he chose to go the opposite way.

[00:23:41] Speaker 04:
He went east when he was told he could go west, indicating that he was not going, and based upon his demeanor as well, it was pretty clear he was not going to comply.

[00:23:49] Speaker 04:
He didn't comply really at any point throughout this entire encounter.

[00:23:53] Speaker 04:
His design was to

[00:23:56] Speaker 04:
object to whatever the officers were saying.

[00:23:58] Speaker 04:
So when he went east after they had told him that was a private road and that he couldn't film there either, you know, at the timing, two minutes, that doesn't really matter.

[00:24:06] Speaker 04:
He didn't show any intent to comply or to go.

[00:24:08] Speaker 04:
If he was going west and they did it, I would agree that you might have a tribal issue of fact, but he was doing the exact opposite of what he was told he could do if he wanted to continue to film.

[00:24:18] Speaker 03:
And you think there's no genuine question whether

[00:24:21] Speaker 03:
the officers might have arrested him because he had been disagreeing with them about what their respective beliefs were about the sidewalk.

[00:24:30] Speaker 03:
Or having argued with the officers.

[00:24:33] Speaker 04:
You know, probable cause is a very low standard.

[00:24:35] Speaker 04:
Well, I guess that doesn't apply to this, what you're asking.

[00:24:37] Speaker 03:
Yeah, and I mean, it's the First Amendment question.

[00:24:39] Speaker 04:
Yeah, the First Amendment question is to, yeah, I don't think there's any tribal issues of fact because they, Sergeant Freiman was attempting to explain to him what was going on.

[00:24:49] Speaker 04:
He was the one, and they were not mad at him for protesting, they just wanted to explain to him, and he was objecting to everything they said, not allowing them to speak.

[00:24:58] Speaker 04:
And so, but there was no sign that they're ever like, OK, that's enough talk.

[00:25:01] Speaker 03:
Which is a person's First Amendment right to do.

[00:25:04] Speaker 03:
Absolutely.

[00:25:05] Speaker 04:
But it's not a First Amendment right to obstruct the sidewalk and go further down when you're told not to.

[00:25:10] Speaker 04:
And so in most of these cases, you're going to have somewhat of a hybrid because you have people exercising their free speech.

[00:25:15] Speaker 04:
I mean, every time the police basically arrest someone, they exercise their free speech to tell them what they think of the officers and what they think of their conduct.

[00:25:21] Speaker 04:
And so that would turn almost any arrest into a potential First Amendment claim.

[00:25:26] Speaker 04:
And I know it's not briefed in this case, but the issue is whether there was probable cause, and then for the speech issue.

[00:25:35] Speaker 04:
So I don't think there is any evidence that

[00:25:39] Speaker 04:
would lead to a genuine issue of material fact that they arrested him based upon his conduct.

[00:25:44] Speaker 04:
They were very clear that you're setting up again... Based upon his speech?

[00:25:47] Speaker 04:
Based upon his speech, yes.

[00:25:48] Speaker 04:
They were always clear it was based on where he was setting up and not respecting the trespass warnings that he was given.

[00:25:58] Speaker 04:
Any other questions?

[00:25:59] Speaker 03:
I had one other question.

[00:26:00] Speaker 03:
So one of the bases that I think the LVMPD relied on was the notion that he

[00:26:09] Speaker 03:
did not sign the certification.

[00:26:11] Speaker 03:
What do you call it?

[00:26:13] Speaker 04:
He didn't sign the citation.

[00:26:14] Speaker 03:
The citation.

[00:26:16] Speaker 03:
I looked at the statute and it seems to me that that statute doesn't form an independent basis to commit a crime.

[00:26:26] Speaker 03:
That it's just a procedural one.

[00:26:27] Speaker 03:
That once someone is being arrested, and if they're refusing to give up their identity,

[00:26:33] Speaker 03:
then you have to take them into custody and appear before a magistrate.

[00:26:38] Speaker 03:
Am I incorrect about that?

[00:26:40] Speaker 04:
Yes.

[00:26:40] Speaker 04:
Okay, so you conflated two statutes there.

[00:26:43] Speaker 04:
Are we talking about failure to identify or are we talking about failure to sign?

[00:26:46] Speaker 03:
The failure to sign.

[00:26:47] Speaker 04:
Okay, so it's like a traffic ticket.

[00:26:49] Speaker 04:
If an officer gives you a traffic ticket, you sign that you agree to appear.

[00:26:52] Speaker 04:
If you say, I'm not signing your ticket, they'll take you to jail.

[00:26:55] Speaker 04:
And that's what they told him.

[00:26:57] Speaker 03:
But there's no crime over the refusal to sign it.

[00:27:01] Speaker 04:
Is there?

[00:27:01] Speaker 04:
No, no.

[00:27:02] Speaker 04:
The crime was over obstruction.

[00:27:04] Speaker 04:
And then if he had signed the citation, he would have been released on scene.

[00:27:08] Speaker 04:
Because he refused to sign, he then gave them the non-discretionary.

[00:27:11] Speaker 04:
They no longer had discretion.

[00:27:13] Speaker 04:
To take him into custody.

[00:27:14] Speaker 04:
They had to take him into custody.

[00:27:15] Speaker 03:
Because I think the district court found that his refusal to sign was also a basis for probable cause.

[00:27:22] Speaker 03:
And that seems wrong to me.

[00:27:23] Speaker 04:
Yeah, the probable cause was for not identifying himself and for obstruction.

[00:27:29] Speaker 04:
And then that was why they custodially arrested him rather than cited him and let him go, because the statute requires that if he's not going to agree to appear.

[00:27:40] Speaker 00:
OK.

[00:27:40] Speaker 00:
Thank you, counsel.

[00:27:40] Speaker 04:
Thank you, Your Honor.

[00:27:42] Speaker 00:
Rebuttal.

[00:27:49] Speaker 01:
So I want to be clear.

[00:27:50] Speaker 01:
When opposing counsel says that

[00:27:52] Speaker 01:
that Nebu Solomon's demeanor was part of the basis for the stop.

[00:27:56] Speaker 01:
To me, that's shorthand and allows the officers to discriminate against him based both on his perceived affiliation with the protest, his race, and based on his First Amendment activity.

[00:28:10] Speaker 01:
The record, it's exhibit three, it's the Freiman video.

[00:28:17] Speaker 01:
The record makes clear, actually, that Officer Freiman never says anything to him about

[00:28:22] Speaker 01:
the Trump hotel and him being able to film across the street.

[00:28:27] Speaker 01:
Instead, initially, Officer Friedman comes over, they disagree about whether that specific area is private or not, and then

[00:28:56] Speaker 01:
This doesn't turn every arrest into a First Amendment case.

[00:28:58] Speaker 01:
In this case, there is evidence that Freiman was acting because he was motivated by Solomon's disagreement with him.

[00:29:08] Speaker 01:
Because there was no specific trespass warning given to Solomon.

[00:29:11] Speaker 01:
There's no evidence in the record about that.

[00:29:14] Speaker 01:
Instead, he disagreed with Freiman, and he starts walking away.

[00:29:19] Speaker 01:
And they're then continuing at that point.

[00:29:21] Speaker 02:
But you agree he was walking away with the intent to set up down the street.

[00:29:24] Speaker 01:
That is true, but I want to be clear that that deposition transcript makes clear, I'm sorry, I don't have the site in front of me.

[00:29:33] Speaker 01:
But the deposition transcript, his intent when he left the initial area was to walk down and set up again.

[00:29:43] Speaker 01:
His intent at that, he did not know that there was no specific trespass warning that that entire area was private property.

[00:29:50] Speaker 00:
Council, are you disputing that he was told to walk west?

[00:29:55] Speaker 01:
Yes.

[00:29:56] Speaker 01:
He's walking towards Las Vegas Boulevard.

[00:30:02] Speaker 01:
It's impossible for me to understand how he could have walked to his car and walked away without violating the trespass warning.

[00:30:12] Speaker 01:
Additionally, in the record,

[00:30:15] Speaker 01:
There's evidence that, in fact, the other journalist was told he could walk down the street.

[00:30:23] Speaker 01:
He wasn't told he could only go to the Trump side of the street.

[00:30:27] Speaker 01:
He was told he could walk further down the sidewalk, away from that main area.

[00:30:32] Speaker 01:
On East, he could go East?

[00:30:34] Speaker 01:
His testimony, I believe that during the

[00:30:38] Speaker 01:
I believe with what he said and it's captured during video, is that he was told that he could walk further down.

[00:30:46] Speaker 00:
And Freiman gave this- It's critical which direction.

[00:30:49] Speaker 00:
If he's walking west, he's complying with the officer's direction.

[00:30:53] Speaker 00:
If he's walking east, he's not complying with the officer's direction.

[00:30:57] Speaker 00:
So what does the evidence show about that?

[00:31:00] Speaker 01:
So this is what the video says.

[00:31:02] Speaker 01:
The white male journalist, taking pictures, says,

[00:31:05] Speaker 01:
He was advised that another police officer told him to move along the sidewalk.

[00:31:11] Speaker 01:
So he wasn't told he had to go east or west.

[00:31:15] Speaker 01:
You're talking about Solomon or the other... That's the other person.

[00:31:19] Speaker 01:
So there is no clear, everyone was told they could only go west or across the street.

[00:31:24] Speaker 01:
There was no clear directive.

[00:31:26] Speaker 01:
Further, we have a declaration in the record from someone who observed this and saw other journalists being able to stay present and take photographs, which leads to possible reasonable inferences that it was Solomon's Reef.

[00:31:40] Speaker 01:
Do they have tripods that were on the sidewalk?

[00:31:45] Speaker 01:
I don't recall, but there are other people taking

[00:31:48] Speaker 01:
taking, there were other people taking folk, taking photographs.

[00:31:52] Speaker 01:
And the point is this record has a lot of evidence that Friedman was upset and did not stop and grab Solomon

[00:32:02] Speaker 01:
Because he thought Solomon had or was about to commit a crime, there is a lot of evidence that Freiman wanted Solomon to agree with him.

[00:32:12] Speaker 01:
And where there is such evidence, under the Velasquez case and other cases, it has to go to a jury for the jury to be able to evaluate whether the officer's motive was to retaliate against them for speech.

[00:32:26] Speaker 03:
Were there other people, so you said there were other journalists that were taking pictures or video?

[00:32:31] Speaker 03:
Were there other people that were just taking video of the protest as well?

[00:32:35] Speaker 01:
Yes.

[00:32:35] Speaker 03:
And were they being told to leave the sidewalk?

[00:32:39] Speaker 01:
The record that I have of the only, I'm not, there's testimony that they were later told to leave the sidewalk, but at the time that Solomon was told to leave, no.

[00:32:50] Speaker 01:
The other person that was arrested, and I think it's on the last Freiman video, was a white lady who had

[00:32:58] Speaker 01:
the officers about Solomon's arrest.

[00:33:01] Speaker 03:
Is there any evidence in the record of someone who was filming and never told to leave?

[00:33:09] Speaker 01:
Yes, that's in Laura Martin's video.

[00:33:13] Speaker 01:
She observes other photographers taking photos

[00:33:17] Speaker 01:
From a vantage point, he wasn't filming either.

[00:33:20] Speaker 01:
I guess he was taking video, but other people were taking photos.

[00:33:25] Speaker 01:
Other people were there and present and were not.

[00:33:28] Speaker 00:
But the difference here is that there was a tripod that was on the sidewalk.

[00:33:34] Speaker 00:
Do you have any evidence that there was a similar situation where there was a tripod that was

[00:33:40] Speaker 00:
of blocking the sidewalk partially.

[00:33:43] Speaker 01:
Not that I recall, but I will just point out to the court that when he was told that he was blocking the sidewalk, if he was told he was blocking the sidewalk, he, in the area where he was, even if there were clear evidence that he was obstructing the sidewalk at that point, which there isn't, at that point, what did he do?

[00:34:03] Speaker 01:
He moved down the sidewalk to alleviate, which could have alleviated any obstruction issue.

[00:34:09] Speaker 00:
Thank you, counsel.

[00:34:10] Speaker 00:
You've exceeded your time.

[00:34:12] Speaker 01:
Thank you very much.

[00:34:12] Speaker 00:
Thank you to both counsel for your helpful arguments in this case.

[00:34:16] Speaker 00:
The case just argued is submitted for decision by the court.