driving a taxi cab yellow cab he was heading westbound on west fifty seventh street he went through the intersection of fifty seventh street and fifth avenue he had a passenger in his car who wanted to get out defendant timothy cro was a police officer on duty during traffic control that morning he instructed my client not to discharges passenger and to proceed down the block as my client proceeded down the block and slowed to merge into the l traffic his passenger who wanted to get out of the cab began to get a cab my client reasonably stopped the cab to let her out so she wouldn't get hurt officer crouse a cross approached the cab from the rear passenger side and directed him to move and to comply with his original instruction which was to keep on driving because he was blocking traffic and not discharge his passenger i don't think so i think what he said was basically moved but the passenger was getting out of the cab an officer crosses testified that essentially the passenger was out of the cab when he got there when he and she in the testimony from my client was that she threw money down on the seat and just started getting out when he slowed to merge she stopped this started getting out and i just jump ahead to the fair you know aspect of this short season that when judge coached at the case and reopened consideration summary judgment was just going to be  qualified immunity and your papers look like that from both sides right were you surprised when she revisited probable cause for the malicious prosecution and i just don't agree with your interpretation of the statute and you haven't raised a genuine dispute material fact i was quite surprised riginal e what happened was in the motions in limine which were submitted while the case was still assigned the judge swai defense counsel raised this issue of qualified immunity and they they framed it as kind of a weird hybrid of a motion for reconsideration which is difficult because it was plainly untimely and they sort of hoops can we make this now sort of motion for qualified immunity but you didn't object to that oh no we did we absolutely object as we look to to looking at qualified immunity i didn't see that in the discussion of the status conference you seem to go along with that i didn't think i am trying to remember i don't know your honor i'll defer to whatever the record says what i do is a good thing to do what i what i would what i would say is in our motion in limine a response i absolutely objected to it as untimely and judge code i believe at the outset of the status conference said it was not a proper motion for reconsideration it was untimely it said or judge coach then said in sum and substance that she wasn't convinced the judge swain had properly parsed the language of the penal law statute one twenty five subsection three and so she would hear argument on that and  had an opportunity for argue well that was and so that was essentially that was what the papers work now what was that was what the papers i believe so i believe what's that all i'm sorry the defendant what i consider their second summary judgment motion the motion before judge coat as opposed to the prior one so judge code did not rule based on any of the arguments in the motion in limine a she essentially that invites this the defendant re brief no new fifty six one statement instead they rely entirely on the fact and you can see it in the special appendix of supplemental appendix page eight in the defendant's brief to judge coat they quote specifically from the facts as outlined by judge swain these are the facts of the case so we come back to this sort of procedural posture which is qualified immunity hasn't really been addressed and now you have this argument and i do think the defendants didn't simply make a qualified immunity argument they argued full throated against both the mouth process and the fair trial argument and i do think that's how was ultimately argued i don't know how asking and trying to figure out what judge code and what judge point disagreed about and it seems as if judge cote was saying the misrepresentation in the statement about being half inside that is irrelevant because are all the statute requires his intent to interfere with a police officer and doesn't and you don't need to intend hurting that police officer and so that whether he was just had his arm in the cab or the whole half his body was in the cab doesn't really matter but it seemed like from the beginning your your view was he didn't intend to interfere with with the police officer either i mean in other words it's relevant to whether he would have noticed the police officer in the cab if he's half way in the cab and so maybe he's lying about it in want to interfere with the police officer but your view seems to be he never intended to interfere either right absolutely judge and i think in this case it's the same evidence in other words judge judge wayne and this is where judge code did not do what i would you would normally i think in my limited experience with this expect when you are essentially revers the district court's prior order which is to say either these are the new facts or this is the change in the law or the prior decision so erroneous as to really require an intervention and that doesn't happen there's an acknowledgement that the prior order and then simply a kind of didn't know ruling without any acknowledgement of the prior holding but in actuality judge swain was very clear in her ruling she had gone through the city's interpretation of the statute which is i think correctly that assault under one twenty five section three requires an intent to interfere that one way or another results in a physical injury you don't have to intend to and to injure but you have to intend to interfere that's the mens rea element and in this kit and judge what judgement says she that's the same exact request or requested reading defendants is what should swing gave them and exactly what judge code says should be applied so i i don't know i think judge coats judge co adopted the same interpretation is judge swain but then comes out differently and i would say iranian slee i'm almost out of time if i could just have an extra minute or two on this point are out of time but yes you may have an extra minute thank you thank you your honor  in this case you have a officer telling a cab driver to drive the cab driver drives the officer i have still yet to figure out in my head conclusively how gets snagged in the rear window of the car and is pulled along he runs alongside the car as you can see in the video and then gets on untangled tumbles to the ground and is injured my client tries to the corner stops the road like it's arrested at the fundamental question is did my client have any idea was it reasonable for them to believe my client had an idea that he was in the car now let me just get rid of the false arrest claim really quickly with judge wayne said was because of the discharge of the passenger that was independent probable cause to arrest for the violation of some traffic law whatever my personal thoughts are about that extension of devon pak i didn't want to raise that issue here secondarily she found that it least based on first glance first observations maybe there was p c for the arrest i think that's mistaken but given the other reason for getting rid of the false arrest claim i didn't raise it but the fundamental issue here is w my client aware that the officer was there that's evidence both of intent to interfere and intent to injure at the same time there the same thing if he doesn't know that the officers attached to the car then he thinks he's complying he thinks he's doing exactly what he was told to do and there's no mens rea if he thinks the officers in the car then he knows he's interfering with him and of course any reasonable adult should conclude that he's putting this person it real risk of injury agree that it's gone after the supreme court's decision and well no judge i don't i don't and i don't think this is the case you know men well came down after i believe the decision from judge code issued it really was not it was presented in the scope of a paragraph or so by defendants i don't i'm not comfortable arguing that it at full length but i would say men if the supreme court intended to get rid of the fair trial claim it would have done so and i don't think that was the issue before demand well what you have is ok so that's that's how i would leave that your honor and your reserve three minutes from yes and i'll raise my or other points at that time good morning your honour's is that podium ok for you or would you like it up a little bit i think it's fine ok very good i just want to start briefly by responding to the notice question that your honour's asked my adversary it's clear going back to pages thirty six and thirty seven of the joint appendix that at the status conference before judge cote the parties discussed at length the question of how the underlying penal statute constructed judge could also made clear that it was unclear at that time whether the parties had really spent enough time parsing that issue and whether judge twain's two thousand and six opinion had actually parsed that issue was never addressed by judge wright is that fair to say well the i don't know if it's entirely fair to say certainly the court did reject our attempt to file a motion for reconsideration but the court was perplexed as to how to instruct a jury or how to fashion jury instructions and how to respond to certain motions in limine a that both sides issues regarding motions in limine either both sides had raised because the construction of that penal law provision remains unclear so the court and i don't want to spend my time finding the exact reference just just yet but the court made clear that the parties could either allow judge code to go back and re judgment briefing that it already happened and stand on those papers or submit additional documents and because only on the issue of immunity on the issue of qualified immunity and the proper construction of intent under the law one twenty five that's correct and so again just two so the question about notice i think is answered by that extensive discussion that the court was going to potentially reconsider some aspects of the priority or and certainly mr sole moral had an opportunity and did take the opportunity to brief any issue that he wanted to raise but turning and again there is no reason why since judge cote correct was correcting an error in the prior decision with respect to the malicious prosecution claim and the fair trial claims there's no reason why judge code needed to allow an error to stand in that error and this is going to another question that your honour's posed to my adversary was where did the judges actually disagree and the and sixteen opinion found that there was probable cause for the mr summers arrest in connection with a traffic violation it did find that but judge swain went on to also find that there was probable cause for his arrest or at least arguable probable cause with respect to the second degree assault charge and it's in two parts of that page is twenty four and twenty five of the joint appendix as well as page twenty seven when the court says again that it could not find as a matter of  the probable cause was lacking for the prosecution on this assault charge so once we're in the in the zone of having at least arguable probable cause for the assault mr summer had the burden of coming forward with some proof that in those twelve hours between the time of this dramatic dragging incident and the time that officer loom or signed their criminal complaint that in that time period somehow those officers discovered an intervening fact that prove the groundless nature of the second degree assault charge and he failed to do so for three reasons first instead of offering any proof he offered speculation about what was in everyone's mind the officers must have thought that this wasn't enough there was a statement of a sworn statement or said rouse told him and he didn't observe this himself he said this is what was told me by cross we file that statement with the district attorney's office limor told him i was halfway in the cab cross never said he saw that and then later on and so that's where the malicious prosecution comes in as opposed to false arrest because it's after the arrest and then later on it seems to be undisputed that that was not true even cross said that's not true again  respectfully your honor i don't know just going back the statement that mr solis pointed to was a very brief and general description one of three comments that officer the more made and i just want to know  in that criminal complaint that officer the more sign he said half of officer cross body was still in said taxi statement mike ross told me that he didn't say i observe it right that maybe that may be true as the parliament states it's material here because the number one concern of the court was is this false and again taken in context a colo colloquial expression like half of the half of crosses body was in a taxi he was hanging out of the taxi it unable to get out and then he fell out and rolled onto the ground causing injuries taken in total that is not demonstrably false in that position it's not true twenty in his deposition i instruction cross acknowledged it was not true that half his body was caught in the taxi in the video to show the video is there different parts of officer across his body that are stuck in the taxi and as he's dragged along at one point it seems to be part of his arm his i believe his right arm and he has to dislodge himself but again that is reason number one because there is tremendous amount of speculation about what was in the officer's mind and what the officer may have been thinking about in those twelve hours not a fact again that was discovered during that time reason to this court was clear in due for to show that fine tuned assessments about what  evidence fine tuned assessments of evidence that might be relevant at trial are irrelevant when we're looking at a question of probable cause and i raise that here because mr summers argument rises and falls on the contention that the officers must have believed that some lesser portion of across his body that that evidence would not have been enough to sustain the charge and that is not the kind of fine tuned assessment that's relevant here and the third and i think very important is that nothing whether it was an arm or a pinky nothing here could show that the second degree assault charge was groundless now it may be that mr silmaril has or would have had had this case really gone to a full trial a number of issues to raise in his defense with regard to mens rea a did he truly mean to interfere with officer cross duties but again going right on down to or up  to i didn't even know you around any nominee the know the car had caught you you know whether by your arm or your torso or whatever right all of those arguments or all of those issues he could bring out in his testimony in a criminal proceeding but again we're looking here at both whether there was probable cause which both judges found and whether there was some fact discovered to vitiate probable cause the objective facts are what control and objective facts facts as viewed from the position of the officers that mr stoller was told not to stop this taxi that he did stop this taxi that an officer approached him after that violation communicated something it may very well be that mr sewell misunderstood that communication but again that's that's subjective in speculation about what was in mr summers mine objectively he was signaled to move his car he drove away at a faster speed he initially described he described his initial speed as his crawling and later it is deposition admitted that he drove away faster so he drove away faster and in the process injured an officer any object any reasonable officer looking at those objective facts could find that the second degree assault  recently qualified immunity protects all but plainly incompetent and knowing violations of the law and using a colloquial expression perhaps imprecise is not the kind of unconstitutional falsehood that would make render imprecise and colloquial term like half in is not a constitutional falsehood but this court can also squarely affirm on the grounds that articulated in the opinion on appeal and the district court correctly found that the amount of the officers body that was struck in the taxi was not likely to influence a jury given the intent there was requests intent to interfere that really is the subject of the underlying criminal charge and i just wa met his burden of proving that it's false and fabricated and the final point is about malice because since we are in the zone of having probable cause or at least arguable probable cause here for  yes i say this only for this reason judge which is my client says when the officer comes to his car that he bangs on the roof of the car and my client hears that as having already been told by the officer a few seconds earlier get going that to him means go because you know he is in the second lane of traffic on west fifty seventh street at ten or eleven in the morning so what your client thinks that would you agree that what your client thinks is not relevant to whether there was probable cause to arrest him at the time for an observed violation i would say with none of the parties thought was particularly the subject of intent the subjective thoughts of the officers isn't important peter your honor i would say it's the objective facts as they appeared not so we throw out what your guy thought and we threw out what the officer thought and we look at not the thinking the action yang of thinking well what we would throw the thinking yes i agree judge but with respect to the banging on the car in the telling him to go no that i would say factually has to be assumed to be true in resolving a summary judgment motion because that's my client's testimony as to what happened not his interpretation of what it meant but whether or not that's factually the objective facts to be assumed for the purpose of disposing of the motion i just want to talk with this very quickly this qualified immunity thing for a fair trial the fundamental issue here is whether or not the officers misled or fabricated evidence misstated evidence to the da knowingly knowingly being the operative word here and i don't see how really in a fair trial context you get qualified immunity if you're knowingly misleading a prosecutor and  but officer crouse has stated his deposition that he also spoke with prosecutors and and gave good consistent story to them my point here is that if if in fact there's evidence that an officer is misleading or being incomplete or whatever terminology you want with a prosecutor no reasonable police officer can think that sort of conduct is reasonable which is different than saying i thought what i saw was reasonable that's a that goes to liability but to qualified immunity the idea that what you're doing even if it's a constitutional violation you could reasonably think was ok well nobody could think it was ok to mislead a prosecutor i mean that who would that's just not a reasonable thing oh it comes down to really whether half in my arm was caught is misleading well distinction between those two was misleading well i think if you look at the i mean do i have yes the  in theory in theory they do and and it's not just that this is what he told the prosecutors is that the prosecutors put it in the criminal complaint precisely because this description of somebody who half in the cab creates a visual impression where my client had to know right that that would satisfy the mens rea a whether it's to interfere or to injure it either way my client no reasonable person could be driving a cab with a human being stuck half in the cab and not no the idea that that's just some conversational thing in a book that's just that's not a reasonable way to avoid the words you choose to use when you describe things to prosecutors and then sign off yourself on a criminal complaint i don't think that's about the fence