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A sergeant who was not even on the scene, a federal appeals court found that the record indicated the officers had no evidence before them when they decided to arrest the plaintiff that suggested that the "sexy cops" costumes had any purpose that could have fallen outside the protection of the First Amendment, German, the court allowed the defense attorney to present testimony that the plaintiff had been arrested three times before? There was also a factual issue as to whether there had been probable cause to arrest the male plaintiff for obstructing an officer!

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