[00:00:00] Speaker 02:
Next, we will hear Aravi, the City Commission of Lawrence, Kansas, number 253068.

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Mr. Baker.

[00:00:14] Speaker 01:
Your Honor, I'll reserve three minutes.

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My name is Linus L. Baker.

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I represent Philip Michael Irvy, citizen journalist who has a YouTube channel called Lawrence Accountability.

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I want to start with two things the lower court said that were erroneous according to our complaint.

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The district court held that plaintiff was moving to and fro in the middle of an ongoing crime scene with an active shooter.

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Those two propositions are incorrect.

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The complaint, I'll just read it to you off of in our brief, but it says on May 19th,

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At approximately 1037 PM, the defendants responded to a reported shootout between neighbors.

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And then upon arrival, defendants determined that one person was injured and rendered aid.

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They immediately came to believe that an armed shooter was inside of the home at 1931 Heatherwood Drive.

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There was no active shooter.

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It was like a domestic or a drive-by.

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They came on the scene.

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Someone was shot.

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Uh, we think the suspect is next door.

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Uh, and so now we're going to try to get this suspect out, but there was no active shooter.

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The second proposition, and this has come up in your argument today, which I found interesting.

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Let me ask you this first.

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Sure.

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So that sounds like sort of this active shooter idea sounds like a term of art kind of situation.

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I guess it's your contention that if someone's not, you know, hold up pointing their gun outside the house, actively shooting at the moment that the cops are there and your client walks up that it's not an active shooter, it's a

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someone who was shooting, but now they're not shooting and they're just in their house.

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Well, yeah.

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The term of art active shooter means the suspect is not detained, you don't have control of the situation, and there's an imminent safety threat.

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Both those propositions are incorrect according to this complaint.

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There was no active shooter, no imminent, he was simply in his house, they said, come out.

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That's not remarkable in law enforcement.

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We try to find somebody.

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We think he has a gun.

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Hey, come on out.

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We're not coming in yet.

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But that's not an active shooter.

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The lower court used that as a term of art, which upped the ante.

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And then he then said that it was an ongoing crime scene.

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Now let's think about that.

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That came up today.

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50 yards away from where this crime allegedly took place.

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That's where the crime took place.

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No one alleged that it was a crime scene.

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Nothing in our complaint said it.

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I mean, I can tell you nobody in the report said it.

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But when you say that this private property 50 yards away from where the crime actually happened, and you say that's a crime scene, First Amendment gets pretty well reduced to zero.

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You have to get out of there.

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Now, the idea that people were walking through the crime scene

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And that's really not what happened here.

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He was videotaping.

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I went to great length with snapshots to try to give the lower court the idea of where he was.

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When he approached, there was no tape.

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He didn't come on the other side of the street where they were.

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He went on the other side.

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And so he walked up, videotaping.

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He is on private property in front of the apartment building filming.

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And so we allege that they had a suggested shelter in place, but they did not have that.

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They did not have a dispersal order or anything like that.

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And so he's videotaping.

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This is something he does.

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He had had prior interactions.

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They knew who he was when he came.

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That's Irvy.

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He's there.

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And so they then, under the orders, I guess they wanted him to keep moving.

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Which the baseline is, is that you don't have that right if under the form that he's on, he's on private property in front of the apartment just filming.

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That's all he's doing.

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And so the idea that then they would say, no, you can't do that.

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That gets into the Jenkins case, which is we have a right to film police from a distance.

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The district court said that, let's see, he said a comfortable something, but that's not the law.

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The law is that, you know, he's not interfering, but he does have a right to record.

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And that's what he was doing 50 yards away.

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Where were, I mean, the police were...

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For lack of a better term, surrounding the house.

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Where, where were they in, in like, what distance were they from the home when he walked up?

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They were in the driveway.

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We have a picture.

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There was a house.

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They had the arm vehicle there.

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So it was parked up kind of facing, but it was in almost in the yard, I think, in, in the driveway of that one house facing the adjoining house.

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So there's the scene, there's what they're doing.

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50 yards away across from where the apartment is, this is where Irvy is, virtually by the front door filming.

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And so then you get into, so if he has a right to film the police, and the case of Jordan

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in Adams, 73F4, 1162, 10th Circuit, 2023.

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The First Amendment protects the right to remain in the area to be able to criticize the observable police conduct.

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Otherwise, an officer could easily stop the protected criticism by simply asking the individual to leave, thereby forcing them to either depart, which would effectively silence them or face arrest.

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Here, the officer did exactly that, ask Irvi to leave.

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arrested him as he was leaving.

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So we're not talking about a buffer zone of 10 feet or 10 yards.

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We're talking about 50 yards away, away from whatever, and there's nothing going on.

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They're just sitting there in their armed vehicles with a spotlight.

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And they haven't established any parameter, no tape, no nothing.

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And then they come out and say, hey, you need to keep moving.

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Well, if you can do that, if you can say you can have a dispersal order and say, get on out of here, you'll never be able to record police.

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They just say, we don't want you here.

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Then you get into the other aspects of this, which is McShane then says, well, I can't get him to move, but he's moving.

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He's moving.

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And so then he says, I can't get him to move.

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And the moment he says, I can't get him to move, I've got the Axon video snapshot where Irvy is turned around, hands in his pocket, walking away next to the apartment.

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They have to chase him, chase him as he's leaving the scene to arrest him.

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Now, so whatever it is that they thought he should have done, he was in compliance.

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And so, and then, of course, you have reports, they said, well, they told him to stop.

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And then other officers said, no, we told him to leave.

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And so the sergeant said, arrest him, and the lieutenant said, detain him.

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That's sort of the same thing, isn't it?

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Well, no, not really.

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Arrest him and detain him?

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Well, they are legal terms of art.

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And if you get detained, you're not getting arrested.

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So I would suggest to you that that's why the lieutenant said detain rather than arrest because Irvy wasn't doing anything wrong.

[00:09:02] Speaker 00:
Well, if you detain somebody, there's a chance they might be arrested afterwards.

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Don't officers detain people?

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Incident to arrest, they detain them and make a decision on whether

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It's a legit arrest.

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I get you, Judge.

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I mean, I'm not quibbling about it.

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Yeah, I'm with you.

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Go ahead.

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I get you.

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I don't mean to interrupt.

[00:09:21] Speaker 01:
No, I'm trying to answer your question.

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But there is a legal distinction.

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Otherwise, Unruh wouldn't have said detain.

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He would have said arrest.

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So in his mind, there was a difference between detaining and arresting.

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Because detaining says, I don't know that you've done anything wrong.

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You may have.

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I don't know.

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I don't know what you're doing.

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But arrest says, we've got probable cause.

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Detain says, I don't know I got probable cause at all.

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And so they run him down and take him to the ground, arrest him and all that.

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And of course, they say, you know, we did this for your safety.

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So the lower court simply will say that did not

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adhere to the complaint allegations, even if this went to summary judgment.

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You have to decide 50 yards.

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And can police say you can't record them from 50 yards away?

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I mean, the buffer zone that this court has already talked about is far more limited than that.

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And being on private property, that's a public forum.

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The apartment complex didn't say he couldn't be there.

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He wasn't any threat to anybody at all.

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And so we've got First Amendment claims and all that.

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The lower court simply collapsed all that in saying that it's a crime scene.

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Now, you heard in the first argument, which I found interesting, he said,

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one of the definitions.

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He says, well, there's got to be evidence on the property in order to be a crime scene.

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There was no evidence across the street where he was.

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I mean, nobody said it was a crime scene.

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The lower court just made that up.

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And there's no analysis.

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I would suggest to the panel, if you're going to say,

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you're in a crime scene, there should be some factors so that you'll know it's a crime scene.

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Otherwise, ipso facto, the lower courts say, crime scene.

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So you have to have some way to review that statement of fact that it wasn't a crime scene.

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It couldn't possibly be a crime scene.

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Nobody alleged it.

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We certainly didn't allege it in the complaint.

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And so with that, every reason the lower court gave to justify stopping Irvy from videotaping collapses.

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He had a right to be on the private property, and that's all he was doing with video.

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And so I gave you the snapshots.

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I wish there was some way in this modern day and age where you have videos.

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That's the best I can do, is take a snapshot.

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And that's what I did.

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I tried to put into the aerial where he was.

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He walked up on the other side.

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There was no yellow tape.

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And then they say, well, keep moving.

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I'm here.

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I'm going to protect you and all that stuff.

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You're a free man.

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You know, keep it going.

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And so, so when you look at this case, it is a citizen journalist photographing videotaping from a safe distance from an apartment.

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And when you realize that he has a right to do that, then the other confrontations collapse.

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He has a First Amendment right to do that.

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He shouldn't have been arrested.

[00:13:00] Speaker 02:
Counsel, could I just ask you a question about the scope of the appeal here?

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In your brief, you list six issues for appeal, but they all appear to concern the First Amendment retaliatory arrest claim.

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Although there's a brief reference to failure to intervene in the sixth issue.

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But you have four different claims in your complaint.

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So at this point, are we down to the First Amendment retaliation claim?

[00:13:37] Speaker 01:
Well, you say down to.

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Well, what are we looking at on appeal at this point?

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Because I don't see you addressing malicious prosecution or excessive force.

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and only a limited reference to failure to intervene.

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So what are we supposed to be deciding here?

[00:13:53] Speaker 01:
First Amendment, false arrest, lack of probable cause.

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And I hear what you're saying.

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I make the argument that any force on a lack of probable cause is excessive.

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That's what I said.

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But it is callous.

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and failure to intervene, that's another collateral.

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Your main, and I'll land on that, First Amendment and false arrest, that is the core of what we're looking at.

[00:14:19] Speaker 02:
OK.

[00:14:20] Speaker 01:
So you're right.

[00:14:20] Speaker 02:
No, I appreciate that clarification.

[00:14:22] Speaker 01:
All right.

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And I'll reserve the rest.

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If you don't have any other questions, I'll reserve the rest of my time.

[00:14:26] Speaker 01:
Thank you.

[00:14:27] Speaker 02:
Thank you, counsel.

[00:14:32] Speaker 02:
Ms.

[00:14:32] Speaker 02:
Stewart.

[00:14:34] Speaker 03:
Thank you.

[00:14:34] Speaker 03:
Good morning, Your Honors.

[00:14:35] Speaker 03:
Michelle Stewart on behalf of Megan Shipley, Austin Twight, Grant Foster, and David McShane, all officers of the Lawrence Police Department, who are before this court respectfully requesting that you affirm the district court's grant of dismissal because plaintiffs' complaint failed to plausibly plead facts that support any constitutional violation.

[00:14:55] Speaker 03:
And the district court correctly found that qualified immunity applied to protect these officer defendants.

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Crux of the claim, I understand now, is an allegation that, well, there was a violation of Mr. Irby's First Amendment rights because there was no probable cause to arrest him for filming.

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Probable cause existed for the officers to arrest him for the crime he was committing, and that was interfering with law enforcement officers, for which he was charged by the district attorney.

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And that case is still pending before the state district court.

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I heard a lot from Mr. Baker about one fact of the complaint.

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But the complaint needs to be taken as a whole.

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And the complaint, the allegations that we take as true on a 12b6 motion, and this court takes when reviewing the same, they all support the existence of probable cause that Mr. Irvy was not simply standing and filming from a safer approach, which I believe the Glick case cited by the Irizarry decision from this court

[00:16:02] Speaker 03:
talked about, yes, it is a right to film police as long as it is not interfering with the officer's duties, and that there is a reasonable restriction for time, place, and manner.

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Here, the complaint details, for pages and paragraphs, Mr. Irby's walking throughout this crime scene.

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It was an active shooter situation.

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The complaint even alleges it was an active shooter, that the police had been deployed to an active shooter, a man was in his home,

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The garage and interior doors were open.

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It required constant monitoring from the police.

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He had fired several shots from his house into the neighbor.

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They had information that he had possession of an AR-15 weapon.

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There were multiple police officers.

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And in addition, according to the complaint, again, the police had blocked off with their vehicles streets.

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So there was a blockade on the streets.

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Plaintiff claims, well, there wasn't a tape on the sidewalk.

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But there is allegations in the complaint of support that they had taken steps to secure the scene.

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They had sent out an officer to tell residents to either leave or shelter in place, because this was an ongoing situation involving someone shooting out of their house.

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And that was the situation that the officer defendants were faced with when they arrived at the scene.

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And then Mr. Irvy arrived on the scene and began walking, and it's detailed.

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Paragraphs 114 of the complaint, 115, 116, that he was walking east, then he walked north.

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When Officer McShane approached him and said, you need to keep moving.

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You need to exit to the north.

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Keep walking.

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I've got to get you out of here.

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You are in danger.

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Those are things taken from the complaint.

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Mr. Irvy did not comply.

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He did not exit the area.

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By his own admission, he then turned south.

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So he's not following the directions.

[00:17:59] Speaker 03:
And in Kansas, interference with police officers in discharging their duties is the elements are that the person knows they're being spoken to by a law enforcement officer, which clearly that is in the complaint, that the person knew that

[00:18:21] Speaker 03:
the officer was engaged in discharging their duties, and that they knowingly and willingly obstructed or opposed the officer.

[00:18:29] Speaker 00:
Taken from the complaint... How was he obstructing anyone?

[00:18:32] Speaker 00:
He was just there.

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He wasn't causing a scene.

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He wasn't making a fuss.

[00:18:39] Speaker 00:
He was just there.

[00:18:39] Speaker 03:
Well, respectfully, Your Honor, he wasn't just there.

[00:18:43] Speaker 03:
And the complaint details, in multiple paragraphs, two officers not even named as defendants.

[00:18:47] Speaker 03:
Officer Pate, again taken from the complaint, said that

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Mr. Irvy's presence was distracting him from observing the house because they were trying to figure out their... First of all, they've got somebody wandering in this crime scene, and then they've got to figure out, can we get him out?

[00:19:02] Speaker 03:
Can we move him?

[00:19:03] Speaker 03:
Do we have to cover him?

[00:19:04] Speaker 03:
What do we have to do with him?

[00:19:05] Speaker 00:
Also, Officer Welch... I mean, that's them being distracted by him just being there.

[00:19:10] Speaker 00:
So he was just there.

[00:19:11] Speaker 00:
I mean, they may have distracted him, but he wasn't doing anything.

[00:19:14] Speaker 00:
He wasn't yelling at them or telling them to go away or getting in front of them or anything like that.

[00:19:23] Speaker 03:
Absolutely, Your Honor.

[00:19:24] Speaker 03:
He was not doing that.

[00:19:25] Speaker 03:
He wasn't yelling at them or saying anything to them.

[00:19:29] Speaker 03:
What he was doing was inserting himself into a very active situation where the officers don't know what this gentleman who's

[00:19:39] Speaker 03:
pulled up in the house, shooting his gun out the window, was going to do.

[00:19:43] Speaker 03:
And so a sworn law enforcement officer, they've got to make sure nothing bad happens to Mr. Irvy either.

[00:19:49] Speaker 03:
So their attention, which should have been focused solely on securing this active shooter, getting him either out of the house, contained, that was in progress.

[00:20:00] Speaker 03:
And then you have a person walking, not just standing, but walking

[00:20:07] Speaker 03:
Again, there is an aerial map that details Mr. Irvy's walking throughout the crime scene.

[00:20:14] Speaker 03:
The district court was correct.

[00:20:16] Speaker 03:
Contrary to Mr. Baker's representation, Mr. Irvy was walking to and fro.

[00:20:21] Speaker 03:
He details himself where he was walking.

[00:20:25] Speaker 00:
What about his position that he was outside the crime scene, that the crime scene was up basically starting in the driveway,

[00:20:33] Speaker 00:
that back where he was 50 yards away, he was plenty far away, he was not in danger?

[00:20:38] Speaker 03:
Your Honor, from the complaint, again, allegations in the complaint, the plaintiff affirmatively pled that he was told he was in the line of fire.

[00:20:51] Speaker 03:
He was in an active shooter situation.

[00:20:55] Speaker 03:
And I would hate to think the contrary if the police had just simply ignored Mr. Irvy and allowed him to roam free

[00:21:03] Speaker 03:
if he would have been struck by a bullet or if another officer would have been struck by a bullet while they were trying to move Mr. Irving out of the area.

[00:21:12] Speaker 03:
That was the basis for the arrest for interference with a police officer.

[00:21:16] Speaker 03:
He wasn't arrested.

[00:21:17] Speaker 03:
And there's nowhere in the dialogue that is quoted ad nauseum in the complaint that he was arrested for filming, for exercising his First Amendment rights.

[00:21:26] Speaker 03:
He was arrested because he did not obey the officer's directions.

[00:21:31] Speaker 03:
And he was hindering their ability to effectively discharge their duties as law enforcement.

[00:21:36] Speaker 02:
Counsel, the complaint alleged that other people were also walking near the standoff scene.

[00:21:44] Speaker 02:
And I take it that that is there to suggest that police targeted.

[00:21:52] Speaker 02:
Mr. Mike, am I pronouncing it right?

[00:21:54] Speaker 02:
You're saying Irv?

[00:21:56] Speaker 03:
I used to pronounce it a Rave as well, but Mr. Baker has corrected me to that it is Irvy.

[00:22:00] Speaker 02:
OK, Mr. Irvy.

[00:22:03] Speaker 02:
Does that suggest the police were targeting Mr. Irvy for his protected activity?

[00:22:08] Speaker 03:
Not at all, Your Honor.

[00:22:08] Speaker 03:
I would ask the court to look at the totality of the complaint.

[00:22:11] Speaker 03:
First of all, the only allegation is there were some other people out there that didn't get arrested.

[00:22:18] Speaker 03:
But the complaint does not allege that the other individuals were ignoring law enforcement direction, does not allege that these other individuals were not filming.

[00:22:32] Speaker 03:
So you've got somebody, oh, well, these people aren't filming, and I'm going to arrest the person that is filming.

[00:22:36] Speaker 03:
There were none of those allegations contained in the complaint.

[00:22:39] Speaker 03:
And the one conclusory allegation that is in the complaint is not,

[00:22:45] Speaker 03:
objective evidence that would meet the Gonzalez versus Trevino standard for plaintiff's burden of showing, in a First Amendment retaliatory arrest situation, that there was no probable cause.

[00:23:00] Speaker 03:
So to the extent there is a conclusory allegation that, well, some other people are outside and they didn't get arrested, there was no allegation that they were also similarly situated to Mr. Irradi.

[00:23:13] Speaker 03:
Irvy, I'm doing it now, Mr. Irvy.

[00:23:18] Speaker 03:
And there was also an allegation that these people were also wandering in and out of the active crime scene and interfering with the officer's ability to do their job.

[00:23:27] Speaker 03:
The district court relied on State versus Brown.

[00:23:30] Speaker 03:
It's a Kansas Supreme Court case that discussed interference.

[00:23:35] Speaker 03:
And in that case, the suspect

[00:23:39] Speaker 03:
was hiding in his basement, refused to come out for five minutes, and was charged with, among other crimes, interfering with law enforcement officers discharging their duties.

[00:23:49] Speaker 03:
What's critical from that case and relied on by the district court here for the crime of interference is that even though he was only hiding for five minutes and refusing to cooperate with officers for five minutes, that was enough to be charged with the crime and found guilty of interfering with

[00:24:07] Speaker 03:
law enforcement because it interfered with their discharge of their duties.

[00:24:11] Speaker 03:
Here, Mr. Arabe's actions of walking throughout the streets, and again, we're going off of the allegations and the complaints as to what Mr. Arabe admits to doing.

[00:24:22] Speaker 03:
He was, by his actions, interfering with the discharge of their duties.

[00:24:30] Speaker 03:
And then when he was asked to either get inside if you live here or leave,

[00:24:36] Speaker 03:
He refused to cooperate.

[00:24:38] Speaker 03:
He refused to comply and instead did just the opposite and continued to walk in and throughout the active crime scene situation.

[00:24:48] Speaker 03:
Again, the district court correctly found that qualified immunity applied.

[00:24:53] Speaker 03:
There was no, based on the totality of the circumstances facing the officers at the scene, very similar to this court's decision in Frye versus Town of Jackson, Wyoming,

[00:25:07] Speaker 03:
The totality of the circumstances as alleged in the complaint viewed as the objectively reasonable officers on the scene justified Mr. Irby's arrest on May 20th of 2023.

[00:25:18] Speaker 03:
An authority probable cause to arrest because it exists based on the body of the complaint that negates any ability to state a constitutional violation and qualified immunity was properly found to protect these officers from liability.

[00:25:37] Speaker 03:
And I can talk about excessive force.

[00:25:40] Speaker 03:
I can talk about the malicious prosecution claim, as those were also dealt with by the district court and properly found that the complaint did not state a constitutional violation for any of the other alleged claims.

[00:25:55] Speaker 03:
And we would request that the court affirm the district court's grant of qualified immunity and dismissal of these officers.

[00:26:01] Speaker 03:
I'm happy to answer any other questions that the court has.

[00:26:06] Speaker 02:
Thank you, counsel.

[00:26:07] Speaker 02:
Thank you.

[00:26:16] Speaker 01:
Let me start with Brown.

[00:26:18] Speaker 01:
Brown was the case in which the police already had a charge against the, he already committed a crime.

[00:26:24] Speaker 01:
They chased him into the house and they said, come out.

[00:26:27] Speaker 01:
And he wouldn't come out.

[00:26:28] Speaker 01:
And that was interfering.

[00:26:29] Speaker 01:
So they've got that upside down.

[00:26:31] Speaker 01:
Irvy did not commit a crime.

[00:26:33] Speaker 01:
Therefore the order is unlawful.

[00:26:38] Speaker 01:
To accept their theory,

[00:26:40] Speaker 01:
about distraction subsumes the right to videotape.

[00:26:45] Speaker 01:
If just being there and videotaping, hey, you're distracting me and that's it, it subsumes the whole right to videotape.

[00:26:55] Speaker 00:
Don't you have them in a little bit of a box there though because of the nature of what was going on here?

[00:27:01] Speaker 00:
If there was a case where

[00:27:03] Speaker 00:
the police were merely arresting someone and had them down on the ground and cuffing them and everything and your client was standing there videoing them and they

[00:27:15] Speaker 00:
arrested him, that would be one thing.

[00:27:18] Speaker 00:
This is a case where they have your client wandering in.

[00:27:22] Speaker 00:
I mean, an errant bullet, I think we can all agree, even 50 yards away, an errant bullet could have struck your client, at which time someone's going to point at them and say, why didn't you clear the scene?

[00:27:37] Speaker 00:
This was a shooting situation.

[00:27:40] Speaker 00:
This man was only 50 yards away.

[00:27:44] Speaker 01:
That's a nice hypothetical, not in the complaint.

[00:27:48] Speaker 01:
It's not anything.

[00:27:49] Speaker 00:
All you have is... Well, you know, I mean, you've been up here arguing to us that he was 50 yards away.

[00:27:54] Speaker 00:
Well, that's a fact.

[00:27:55] Speaker 00:
We know that they were responding to a shooter.

[00:27:57] Speaker 00:
Past shooting.

[00:28:00] Speaker 00:
So this, and they don't know... Well, he doesn't have to, like...

[00:28:05] Speaker 00:
Is your contention that the person has to be actively shooting when your client wanders up?

[00:28:10] Speaker 01:
Well, let me go back to where we started.

[00:28:12] Speaker 01:
It was not an active shooter scene.

[00:28:15] Speaker 01:
You just had somebody where they wanted to effectuate an arrest who they had a gun and they just, they parked up there.

[00:28:21] Speaker 01:
They said, come out.

[00:28:22] Speaker 01:
And then had discharged it recently.

[00:28:25] Speaker 01:
allegedly, okay, but still 50 yards away.

[00:28:30] Speaker 01:
I mean, your scenario where he's five foot away resting, hey, you're distracting me.

[00:28:35] Speaker 01:
You're right, he wasn't doing anything.

[00:28:37] Speaker 01:
If you say, I can't... I do.

[00:28:39] Speaker 01:
I agree with you.

[00:28:40] Speaker 01:
He wasn't doing anything.

[00:28:41] Speaker 01:
He just wandered up.

[00:28:43] Speaker 01:
Well, he wasn't even wandering towards him.

[00:28:45] Speaker 01:
He was by the apartment building and to the point where they said, hey, you need to leave.

[00:28:51] Speaker 01:
You've got the video snapshot where he's walking away.

[00:28:55] Speaker 01:
And McShane says, I can't get him to move, which was false.

[00:28:59] Speaker 01:
He was leaving.

[00:29:00] Speaker 01:
He was leaving.

[00:29:02] Speaker 01:
And so based on that false information, Sergeant says, go get him.

[00:29:07] Speaker 01:
Well, you can't do that.

[00:29:08] Speaker 01:
There's no probable cause on that.

[00:29:11] Speaker 00:
We're probably pressing Judge Matheson's patience.

[00:29:16] Speaker 00:
I'm sorry.

[00:29:17] Speaker 00:
I really sorry.

[00:29:17] Speaker 02:
He's just using the rest of her time.

[00:29:19] Speaker 01:
Oh, OK.

[00:29:20] Speaker 01:
Right.

[00:29:20] Speaker 01:
I'm sorry.

[00:29:21] Speaker 01:
All right.

[00:29:22] Speaker 01:
We just ask you to reverse the district court.

[00:29:24] Speaker 02:
Thank you, counsel.

[00:29:25] Speaker 02:
Thanks to both of you for your arguments this morning.

[00:29:28] Speaker 02:
The case will be submitted, and counsel are excused.