plaintive gregory cries was detained in handcuffs for forty five minutes while at this railroad crossing it was it only three minutes for this particular defendant it was i'm going on a thousand dollars in damages but what this case consumes i think the first thirty three minutes of being handcuffed and then that's the undisputed core fact in this case it is our help me with that and secondly he was arrested and i see no probable cause no basis for this man's arrest well the lower court first of all your honor decided as a matter of law that was reasonable suspicion to  and it is clear that what was originals says reasonable suspicion was that there was a radio dispatch from greenburg police headquarters on the nine one one call from the passing motorists that there was a white male and that was a mistake by the dispatcher but it if it doesn't say it it doesn't have any significance that there was a male in a red shirt cops which told it there was a white person right but that's how it was dispatched yes mistakenly by the dispatcher but it was a male in a red shirt bending down by the train tracks at virginia road railroad cross with a remote control object in his hands no pedestrians should be in a railroad crossing by train trucks whether actually trance passing were not place right of way across the railroad tracks he had a right any member of the public had a right to cross the railroad tracks where this young where this kid crossed the railroad tracks did your honor but he was holding what appeared to be a remote control device the police had a right to detain to investigate what he was doing by the railroad for all did it take to send seven sentient police officers to determine that a camera was a camera the sense that you know just to get you know that in the give and take it's going on here that there had been prior incidents where the officers had been told and trained about the possibility of terrorism coming up on nine eleven anniversary that they were sensitive to that question and that they were going to err on the side of protecting the public by making sure that there were no explosives on the tracks and that that's the those are  at some point they released him but during that investigation they said as soon as the m t a confirms that there are no explosives on the truck you'll be free to go and so it was whether just it justified it justifies it i don't know but there was an excessive effort to to to to watch out for a problem here that the police were undergoing i don't agree with excessive europe but your honor any common person knows that something is benign as a cell phone that's  received explaining what he does but it's not mutually exclusive you're only he could have a right to be there in the e mail which said you can't be on your property and you should be at a safe distance stat doesn't arguing this is a trespass case but the police had an obligation to investigate make sure those tracks were safe that he hadn't placed anything on those tracks we have cell phones that can remotely that can shut off lights as they advertise in the bahamas here in brooklyn we can shut off light we have a technology today with things can be triggered remotely so argument fake knew that i had specialized training on that when he quit if you're in the record we have  so phone audio recording when officer in charge of mcveigh pulled up but the more you argue that hamann included like a cell phone can remotely cause a train to blow up the sergeant mcveigh say four cards in a couple of minutes keep your hands here i need to see your hands please put your hands on the barrel he was obsolete and he didn't have a gun he didn't have a knife i don't think there was any suspicion that he had that but these two many cops ultimately there were probably a dozen cops that showed up at your apartment they didn't control that he was the initial responding officer hitting calls police officers they have to show up they didn't need all those police officers to detain rice they were there to perform a complete and orderly search of the train tractions didn't these police officers at a certain point satisfy themselves that we had a train buff here why did they turn him over to the m t a then well at some point after the m t a officers arrived following grace's placement in handcuffs we dealing with thirty three minutes in which this particular because if that period of time the police were able to either verify or dispell as they ultimately did that he had not committed any wrongdoing and the train tracks were safe i thought that the  greenburg police made a decision to have the and key personnel who are familiar with their own mechanical equipment switching gates especially if you the paterson case which had occurred just three weeks earlier it was placed into the roll call alert  was read at at and greenberg to have them check with their signal and communications people check the crossing gates ensure that no spikes or clips had to remove from the tracks and they had to yardmaster come out and check the mechanical equipment in the empty report reveals that their officers and a canine went i think it was two hundred yards up and down each side of the track in each compass direction to ensure afraid he was released almost immediately after it was determined that he had not committed any wrongdoing and the tracks were safe for train passage and vehic was he didn't have any identification with him and then the m t a took him to mount vernon a couple of your offices said they had recognized him as someone who had attended some of their meetings but that was jewish look at this case you look at it from gracious side and you look at it from the policeman side and you get come you had a different different ideas about this i mean whether the police went overboard and did too this is that the lower court focused on grace following the pattern by charging mcveigh not being in possession of a weapon or a gun or knife but that this court has recognized the circumstances where him puffing is didn't know exactly what the room that was in or that was a scanner into the scanner but there buttons on your answer as an antenna it sure seems like he was capable of causing some pretty significant destruction out there remotely as we all know can be done in today's sophisticated technological world we live in so that mcveigh expressed that concern on recording he kept going back to his hands and he said to him for your safety and my safety i'm going to handcuff neutralize that threat of rights being able to use his hands not knowing what had been in a backpack what object or device christ might have placed on the tracks before mcveigh got there when he had heard over the radio that a motorist said he was kneeling on the tracks not just standing on the tracks kneeling by the tracks and he's holding a a remote control device contemporaneously just five minutes before mcveigh got there and then what mcveigh did once he neutralized the physical threat he took care of the flight is confronted by the police they're not always docile and as sergeant mcveigh testified maybe less than eloquently kids do stupid stuff they flee from police had this sixteen year old fled he could have during the argument about this thirty three minutes first of all if he was held beyond those thirty three minutes because of mcveigh mcveigh told the m t a and every other officer at the scene that when he arrived mr price was standing on the tracks and that he arrested him for trespassing that's where this trespass charge came from and under kerman mcveigh is liable for those consequences it was a forseeable consequence of his false claim that he observed mr gryce on the tracks that mr price would be arrested that he would be issued the summons from the m t a that he would be prosecuted all of these things are forseeable from his claim and so what we really have here is a straightforward false case we have on the one hand mcveigh saying mr brace was on the tracks you have on the other hand mr gray saying i was at all times you're only complaining about the term no no we're not we're  determined there was a problem here because at one point the officer who wanted to follow up on the call was given the wrong number by the dispatcher and couldn't make that call but there was a name given the person was i gave her name and was mentioned first the information that the complainant had left a phone number and a telephone cannot be imputed to make that way when they arrived all he knew based on the dispatch was that an unknown complainant who had left the scene five to ten minutes before had color and that wearing the wearing a red shirt the any reason really for me to flank this was not the person who had been reported the report was at the time that they're right that somebody had been kneeling by the not on the truck right but also i do think there was a reason because by the trucks could mean anything by the be also kneeling over the tracks there was kneeling on the tracks i think at one point but drawing that was much later in the incident that that was relayed and again it was one of three descriptions and in any event if if the person is by the tracks does the officer have to say well that doesn't mean he's he's on the tracks could be could be  report said by by could that could mean exactly where he was standing we don't know because the collar could never be reached the fact that it was because of a wrong number being relayed wasn't known to the officers at the time they tried to reach them and so that color remained on reliable facts for why it was unreasonable when mcveigh initially arrives at the scene he says i see this man we write he sees me he takes a photograph the train passes safely through crossing the gates go up and down in patterson there was an issue with the interlocking system and the gates no indication that that's what's happening here because a train has safely gone through there there's nothing to indicate that something's been place that's affecting those interlocking gates w arrives he's in the train goes through he says after the train passes and it takes a little while he's surprised to see mr gryce is still standing there mr price doesn't run he doesn't do anything furtively doesn't axis vicious in any way in fact he liam fully cooperates with mr with sorry sergeant mcveigh he answers all of his questions he provides his name his phone number he says you can look in my backpack i have an e mail that says what i'm doing is permissible he also look at his phone they check the photos the photos don't show anything nefarious they show what mr gray said they would show him taking photos of passing trains and the cell phone it's on it's on the barricade it's records this entire incident if they're so concerned that this is something that's going to trigger a bomb they leave it there they don't touch it they don't have any concerns about it as indicated by the fact that it remains exactly there on the barricade and then it's only at the end of the incident that it's picked up to and put in the backpack he was held for an hour in handcuffs he was surrounded by officers he was questioned and interrogated though he wasn't given miranda rights you know i think the reasonable this of all of this is it is underscored all the more when you hear that portion of the which is in the record and if you're mr gryce start to cry and ask that his mother be called i mean this is indicate a terrorist and yet at that point he's still held he still held he still held and then he's alternately transferred to a precinct he's still have held and he is charged with trespass on mcveigh's claim and not his wife which is false and we believe is supported in the record but it's false because you can hear the cell phone is sitting there and it's the when you listen to it you can tell that mr brace is standing by the cell phone which is on the barricade the entire time thank you thank you the precise location where grice was located when anthony bay arrived and before he arrived is not important but took the n t h right down here today trains extend three to four feet beyond the the boundaries of the tracks your adver disagreed and said that these jury questions these are all jury questions including a qualified immunity because the facts are not are not straightforward here and there inferences to be shelf a suspicious somebody taking photographs at a railroad crossing a a monitor that where grace listened to the communications m t a personnel that suspicious to the email in the this could only be a de facto rest if you go through the we have an advantage here we have the the so phone recording surreptitiously recorded by grice not once and we have a transcript that's in th later when the m t a took him to headquarters debrief him interviewed him they want to know if you knew anything about the patterson case where the spikes in clips had been removed from the train tracks and then they gave him a summons  by the railroad tracks which could constitute a trespass mcveigh didn't report that you thought your position that the call are created probable cause to arrest this man for  vision was made later the only place he saw me was on the right right and there's does the claim in this complaint by the way that that sergeant mcveigh was the proximate cause of the decision of the m t a to later arrest and charge category then that under it's argument that even the new york state statutory criminal procedural or requires that a police officer witness a violation such as a trespass for fourth amendment purposes if there is otherwise