good morning scott coren ma'am for the plaintive appellant as you consider this appeal i think it's significant that there are at least three undisputed facts that require reversal first when officer brown approach the group which included mr brzezinski to others and the vendor mr elden darry he had the summons in his hand that he intended to give to mr elden dairy second in response to officer brown's order to move he moved approximately ten feet in the direction requested by officer brown and he was then situated on the other side of the vendor's cart with the vendor on the other opposite side and throughout the entire five and a half six minute interaction from the time he was that's videotaped to the time of his arrest he never moved from that location there are two other facts one of which is disputed and one there's a fourth fact which has to be drawn in order for the inference that had been or favors that the group was just talking about when officer brown approached so from there from the next five minutes on regardless of what mr brzezinski said whatever regardless of what he did or didn't do he never interfered with officer brown's ability to say buke why it just walk around to the other side of the car and say here mr elvin dairy here the summonses that could have happened five ten seconds into there as soon as he moved and with those facts in mind there's no o g a and there's no disorderly conduct and so it's in when  you invite the court if it hasn't done so already to watch the videos and watch the first approximately forty five seconds of what's referred to as mr brzezinski video which is the longer video and then the second in his deposition well no but for reasons i didn't handle the matter below for reasons i don't understand neither defense counsel in the plaintiff's counsel asked any of the participants to identify the vendor but at page one ninety eight and one ninety nine of the joint appendix mr brzezinski gives testimony as to where the vendor is he saying he is as i just described on the opposite side of the court near the facade of the precinct because that your adversary and it's brief and it seems to have some plausibility and a qualified immunity argument says that the pressure the difficulty one way of looking at the video is the difficulty is your client  was standing in front of it was insisting on standing behind officer brown as officer brown was attempting to give a summons and refusing to move further distance that the officer was requesting so that he was within one phrase in the brief brief a striking distance he could reach out and he was behind officer brown and that was intimidating because officer brianna has a gun which he has to protect and he was discharging official duties and your client was refusing a request to move a few feet further away so he wouldn't be so proximate what's wrong with that argument well the many things are wrong with that argument which is it's just not an accurate reading it is a reading of the video which whether harris that means that it's the jury's determination but i again if you juxtapose the videos and you see him moving he is on the opposite side of the court and if you credit when mr brzezinski says that the vendor is on the opposite side of the car then he's not interfering with him in any way as far as the intimidation is concerned another weaving of the video is yet he's in striking distance officer brown can move now i know he may not have to move but he is holding his video like this and i suggest it's more plausible for qualified immunity purposes when you have a complete absence in the accusatory instrument of any mention of feeling intimidated the jury can conclude that there was no intimidation going on and here's what  all of which is belied by the video think we can all agree that's not on the video maybe it happened before but that's a disputed fact but it's certainly not on the video i asked the defendant if he had any business with mr barry and the defendant stayed in substance as me that he did not that's not on the video maybe it happened before him it's a disputed fact i then asked the defendant to move out of the way so that i could hand the summonses to mr elden darry and i observed that the defendant refused to move stating in substance to me i ain't moving shit and you officer says move fifteen feet away and he can make a judgment that i can only i'm only going to give you ten feet because i think i saw that you need it's not his judgement to make isn't it isn't it still a lawful order for the officer if he's doing his his job to say i don't you to move over here and if the guy and he refuse he did not move where the officer asked him to move moved in direction they asked him to back the distance and it was not a lawful order but unlike the distance yes he wanted it's undisputed he wanted to move more but he couldn't make a move more legal wise than an unlawful order if the officers isn't was it your client's judge as opposed to the officers judgement about how much distance to the office and obstruction government ministrations statute is also relevant here well those are the two crimes of these charges and those are the only two but he's not interfering with his ability to perform a lawful function that's why i start why can't the police decide that they wish to establish a cordon within which police business can be conducted and decide that they want everyone to be what they consider to be a safe distance away from the place where they're going to conduct business but it's which they can conduct safely conduct police business from their point of view then i and then it seems to me it's a lawful order to say please move beyond what i consider to be the distance in which i feel safe keep in mind this started out with just officer brown i mean it ended up with the entire precinct but it started out with just one person who looked to me to be about seven inches shorter than your client and much broader i mean even if you had even if you had a very short person and a very small person you may want that person to be out of reach of the gun out of reach of anything else but that gets back to the point which is and this gets back to george judge daniel point which is he still had to have committed a crime something where there is probable cause and the lawful order statute of disorderly conduct says a person is guilty of disorderly conduct when with intent to cause public inconvenience annoyance or alarm or recklessly creating a risk of their of who create he congregates with other persons in a public place and refuses to comply with a lawful order the police dispersed and i direct the court's attention to people versus johnson which is factually quite similar and involved actually gang activity where the new york court of appeals said you know just loitering outside of a doorway and disobeying a police orders a police officer is direction to move doesn't comply they were not congregating with the intent to cause annoyance and alarm again the congregation is the group but since at least for arguable proper probable cause the obstruction government statute because there is just in correct me if i'm misunderstanding a person has to intentionally and here a governmental function or attempt to prevent a public service from performing an official function by means of intimidation and the point i'm asking that isn't it intimidating to stand behind someone who is an armed fish on has to make sure that they are protecting their weapon and there's no chance of someone approaching them from the back and then refuse repeatedly refusing a request to move  full a few feet further away there's no evidence of intention jury can find there's no evidence of intimidation here because again i point you to the accusatory instrument where there's no evidence of it were very important and i'm over my time can i finish this is going to have when but when brown speaks to the lieutenant kochi he doesn't say anything about intimidation nothing he says fortunately he put a camera in my face that is fault so look at brown's conduct it just belies any sense of intimidation and if you look at the cases the city cites for intimidation you have multiple people surrounding an officer you have them interfering that's not this is it and brown repeatedly like a moth to the flame brown comes back to visit ski nothing he never stopped him from just and i get back to the initial possible that he went into the police station and decided that he was going to go out and tell the guy not to do it again and give him a warning and not and not deliver the the  summons i mean people get stopped all the time cops say you blew that light don't do that again but the only route he could have had a last minute saying yes i don't know and we don't know but we do judge well he does he says at one point you hear him on the video go ahead give him the summons is why is it his business to tell the police to deliver a summons that i absolutely agree that officer brown ultimately did not have to but he could of the question is i mean i watched the video and it's not it's not the prettiest picture when you have a graduate of georgetown law school getting his jollies by matching wits with a high school graduate i agree with that but i urge the court right it's very it may be easy to have this visceral reaction of strong dislike i don't think i'd go out for dinner with mr brzezinski meaning the  strong aversion to it but it's not clinical and you can't put somebody in jail for a year when there's no crime committed and you're saying they're going to dinner is not to the relevant standard i completely agree with you i think you reserve i did i did three feet from the vendor and two or three feet from officer brown's yes in the movie did well know initially that right the beginning of the video is officer brown saying please move out of the way and you already moved no well the very first moment doesn't he says i'm not in your way you can arrest me if you want and he has not moved to that point and then after brown repeats his request he moves about five feet so at the very beginning when officer brown asks him to move they're extremely close together and officer brown was reasonably conclude that he didn't have what you described to jacob's as the sort of zone to operate safely and comfortably to do it finishes business with the street vendor at that point when officer brown when mr refused said you can arrest me here i'm not moving and then he moved a few feet i think there was a reasonable basis for officer brown to feel that he needed some more space and that is in stopping after moving three or four feet out of the way wasn't sufficient to give him the comfort that he felt he needed to complete that interaction and as you said we don't know what more business he had with with the vendor we don't know whether it was simply going to hand him the summons and run back inside we do know that he that officer brown was concerned what an offense for which someone can be arrested not to move along when the police move along nothing to see here it is certainly an offense if if if it constitutes either obstruction of governmental ministration or disorderly conduct focus on the obstruction of governmental ministration intentionally preventing or attempting to prevent official business by means of interference or intimidation and we spoken about the intimidation right behind officer brown in a black jacket about two feet away and from the testimony of mr brzezinski about where everyone was positioned right before the video started you can infer that that was the vendor that was standing all together at one end of the cart other side of the cart while officer brown's dealing with a citizen ski but that doesn't mean that it's point where where officer brown asserted his right to have some space that they had to bend or was it was on the other side of the cart that's not correct they were immediately next to each other gauge an interaction with a third party and if a bystander in his view is is physically interposing himself to the point where it's difficult to focus and then he has a right to ask that person to move farther away and to make a judgment as to how far is appropriate and so at the very beginning he asked him mr brzezinski simply to move and business he said no i won't move at that point i think he was justified in acts and insisting on an even larger buffer because mr brzezinski had signaled that he was being  the initially he didn't ask him to move to the far end of the card he simply moved to ask for more distance and to since he said i'm not moving you can arrest me here if you want at that point i think he was entitle to insist on some more space how much how many feet or yards are we talking about totally the distance from where midst of his inskeep was he getting the water from the from the from the vendor and where the cop was telling him to go  what are we talking about i mean that's made but i'm not very good at this right from one end of the car to the other it's maybe ten feet and to there to your question about whether he could videotape from there we don't know whether he could videotape from there because he never went that far we also don't know whether if he had moved there and come around perhaps the other side where he had a better view that there wouldn't miss that officer brown would have had any problem with that because what he said was he was refusing to move entirely and that became  something that officer brown had to deal with instead of turning back and completing his interaction with a vendor he had to make sure that this person whose intentions he didn't know whose connection to the internet to the vendor he didn't know was a distaste distance away so that he could turn the creating a risk of what what would you say well i would say of both the subsections five and six of obstructing protests train traffic and of any new garbage you unless pedestrian wanted to climb over the garbage to get someplace and see how he would be obstructing the well it's it's true he would but i think the concern was that because of his conduct which was creating a public alarm attracting attention they were bystanders congregating there was a narrow space allowing pedestrian traffic between the food cart and the walled building and many pedestrians had to pass people were stopping you can see it but since he was on the other side of it if he was if he was on the side between the facade of the police station and the cart then he would be blocking the flow of traffic that you just described but he seemed to be in a place where nobody would walk because because that part of the sidewalk was blocked by a police van and a pile of garbage right i'm not suggesting that his phiz his body was blocking the traffic on dark that was  creating attracting attention and creating an obstruction now but i would focus on the subsection six only reason it attracted any attention because officer brown was making an issue well i think officer brown was entitled to insist on as i said on a safe space and when officer brzezinski i mean when does in ski refused to move perhaps you could say that that officer brown had the option of disengaging from that interaction returning but that was his judgment to make in that tense situation and he had to make a judgment on the fly as to whether to disengage from from his in ski except that he had moved far enough or to insist that he move farther and that's those kinds of judgments are why whether the officer engaged in what we consider the best practice or exemplary behavior there's no constitutional obligation to avoid arresting someone where there's a probable cause to do so just because you might through skillful means avoid arresting that person there was probable cause to arrest and certainly arguable probable cause to believe that was attempting to obstruct him from conducting his business and releasing perspective he did do some of the things that police officers forty five officer brown withdraws from that confrontation turns and asks fellow officer to call a supervisor and at that point does not engage in mr brzezinski any further at that point he turns to another bystander who's been gathering at the to look and says can you please move along at that point business interjects and self back into the encounter and says move forward he doesn't move forward no but he's physically in the space and he says that's where you wanted me to move which undermines his his authority which destroys strax him from engaging with the officer the physical interference the physical requirement of physical interference is minimal under under the new york press didn't you know the the pretty much being physically present and interfering in a way with the officers is sufficient the counter cases is a decision involving a person who tipped off other drivers about a speed trap using a c b radio in the court of appeal said that person wasn't physically in the zone where the officers were acting but in the the court came to a different outcome noting that the defendant had intentionally intruded on an area of police activity after being put on direct notice to stay away and that's exactly what happened here and i ask about the charging documents because it seems to be very hard to square with the video we had no point see the plaintiff cursing which might have added to the disorder of the situation we had no point at least as far as i could see see him block officer brown's path so and i understand from doesn't judge livingston not from a false arrest claim from the first i would say just as a factual matter the we have the benefit of a video of the encounter officer brown didn't at the time that he was trying to collect his recollection of a tense situation and i think it's clear that there can be different recollections of an event like that so i don't think it's any basis to infer that he was intentionally misrepresenting what had happened but even so the question about probable is what was what were the facts at the time of arrest the the doc the charging document came later and couldn't retroactively manufacture probable cause and it can't undermine probable cause either if we have the the video which can speak for irrelevant to whether he had probable cause in that moment under arrest thank you thank you there is one thing i forgot to add about how we know there was no interference and then i'm going to address some of the points that mr plant made about two and a half minutes into the video brzezinski video and he still has an issue the summons even though as mr plan concedes there's times where he's not engaging it does seem rather inefficient so he says when and when he says that's what you told me to move he goes good stay here all day that's what officer brown said at approximately two and a half minutes is in our briefing and have the exact where it could stay here all day if you says that jury can conclude from that statement that he's not interfering with his ability period this is not just about where he was position it's also about how he was gauging the police officers what a police officer was trying to conduct as well yes yes if you're looking at the totality of the circumstances to determine probable cause of course but nothing he says interferes with his ability to go around he was at least distracting the officer in brown's mind ok but nothing stopped brown from just saying ok and there are third there's at least a thirty five second gap as mr platen point out before what i just indicated where there's ignored him as soon as he moved no but there are some points i need to make and i see my time is almost up where was the vendor you look at when ninety seven to one ninety nine that's where the vendor is he's in front of the cart and mr plant said you know you have this vending cart it's not one where the vendor sits inside stands next to it is so if the if this is the cart horizontally and judged the bench is where the facade is elbe and barry is on that side and you see in the video that since he's like round here next to the garbage so he's not interfering with anybody flow pedestrian traffic and how one person can block the for he mr plan said that for twenty one seconds into the video mr brzezinski didn't move refused to move that's just not correct you see the video and you see move and it goes ok i'm moving and you see the video backtrack because you see and moved enough that's later on this is not for your purposes i'm responding to what mr ryan said which in the first instance he refused to move which is not the case that's what i was that he refused to move to where the officer brown told him he should go well he actually moved to where he was and then brown says move some more that is correct but he does move in the direction brown directs and he's not interfering with brown's ability and again there's no actual threat and harm to new york court of appeals has made when it made crystal clear when considering the disorderly conduct statute that evidence of actual or threatened to harm is a prerequisite before you even get to any of the subsections and there is no evidence of actual or threatened heart and that is cited in our reply brief in our main people vs we we have the three ok people versus johnson so if there is no other you know other questions thank you very much thank you thank you both will reserve decision