patterson belknap for sort of for up this appeal raises a key issue of whether there was probable cause to arrest given the plaintiff's own admission that it dissipate a police order to disperse there were also issues of whether sergeant ferrari can be held liable for prosecution which he had no direct involvement and whether the city arbitrarily withheld and so probable cause as we know is a complete defense to the false arrest complaint here plaintiff's own testimony establish probable cause for two different crimes one obstructing governmental and that administration and two disorderly conduct and the o g a claim the officers here were responding to a report of gunshots and the plaintiff can see that he was ordered to disperse he conceded that he understood that order yet he refused to follow it this minute refusal to follow an order alone gives to probable cause for for obstructing governmental administration you know there are a lot of kind of what i call distractions in the plaintiff's argument but you know one of them is that you didn't races voice well raising your voice is not a required element of that crime and i think the cascade from the nd circuit is squarely on point there and in fact is less probing to because you know here we have a gun run case not just a protest disorderly conduct the planet's failure to follow the police order provide probable cause to arrest i think the main issue on which the district court focused was whether there was public inconvenience all that's required is that there be a reckless risk public inconvenience and here there are two separate things that stablish that st the plaintiff himself admitted that a good number of people watched the unfolding events this can be seen on the video and i call your attention to the video i counted about ten people during the course of this commotion who stopped watched you know maybe they moved on well there has to be as a risk as well if you look at the people  it's so this is a situation where storage and ferraris arrived at the same twenty three seconds later the plaintiff was arrested you shouldn't be nd guessing is the decision to rest here all right th  nd issue is malicious prosecution malicious prosecution requires that the officer play an active role here sorted for played no role he never signed a complaint he never spoke to the prosecutor nothing and unfortunately the theory called a collaboration theory that the plaintiff had serious would wisely expand liability for superior officers and with deter officers from getting involved in necessary steps for an arrest which just would be an unfortunate consequence so absent that sort of active role you know this disclaim should be dismissed and similarly as a fair trial claim because that requires that they officer have forwarded information to the da again the sergeant for had no connection whatsoever to this prosecutor and never spoke to the prosecutor never signed anything  in the form of a complaint that would initiate this prosecution there isn't a single case that says simply signing off on arrest documents creates liability for either malicious prosecution or denial of fair trial  so we believe that all of those claims ought to be dismissed you know based on the plaintiff's testimony there is another key issue here which is the indemnity issue  this is really are one of the millstreet stop the plaintiff suffered no physical injury whatsoever and you need the city offer to include our client in a settlement acknowledging that indemnity is appropriate and then inexplicably never got back to his counsel once the counsel tried to negotiate what that amount would be just you know the person arrested i mean is the situation given what has been found about lying and lying lying isn't it absolutely clear that there was no mens rea up to  obstruct or specially given the change you know from a gun to a completely different thing or to do anything about governmental action or to disperse so that that's my problem i don't see any evidence of mens rea i also have problems with the question you talked about supervisory liability with respect to malicious prosecution but that isn't the claim th being brought is being brought that he was part of it and that's right collaboration and much more interested in both your argument about indemnification because i am puzzled about potentially even due process arguments but which i'm not sure give me so i would rather i'm very interested in your indemnity argument or he just don't seem to sense all right disobey an order and that's all that's required for intent for obstruction but for disorderly conduct though there needs to be is a risk of public inconvenience and that is established by the video it's established by his own admission that a good number of people stopped and watched you mention lying and i think that is not really supported by this record misstatement about whether physical force was used according to the testimony was a mistake and it's an understandable mistake and by the way it's something that happened after the arrest so it's really not an issue the arrest happened within twenty three seconds plaintiff admitted that and by the way so again for wasn't even involved in the decision to arrest you just  arbitrary we've pointed to only two cases where the city has denied indemnity they granted a deputy in cases like the sean bell case the recorder case where people hide this is someone who had no physical injury whatsoever and all of the facts that they were law on happened after the arrest so there's no reason to say there shouldn't be indemnity for someone who is clearly performing their official duty by showing up in twenty three seconds later assisting with an arrest i think that you know the only standard that the court of appeals has articulated is that there needs to be a factual basis here there isn't a single factual basis and i think the arbitrariness of this is confirmed by the how the city corporation counsel dealt with this they acknowledged that they it was proper to indemnify this officer because are why there needs to be a hearing here this is an officer who is being punitively fact with over a year's worth of his salary and you know this is a someone who you know is it stacked  tire case of the defendant or the plaintiff submission the jury saw them the jury saw the video didn't say that's correct in the video support loaded missed well i've seen the video too and i'm not so certain agree with you there's a reasonable inf fact i would say he's arrested because he allegedly slaps someone and moves his arms wildly neither of which he does actually arrest form says he is arrested because he failed to follow an order and he signed off on the arrest report but if you look at the case of the cases his reply scimitar he made a representation that it was truthful in the arrest report but not in the complaint he did not sign the don't blame only not sergeant ferrara have a responsibility to correct not for purposes of the prosecution because that's not what you're relying on is this now prosecute this kind of process they complain and and he has nothing to do with the complaint you're honestly telling me th e supervisor can disregard an untruthful representation in an arrest report by a simple officer under his supervision that it you know i'm it's a question of what is the liability for the liability is not for the arrest that's for that's a false arrest claim the liability is for the prosecution and somebody or sergeant for played no role in the prosecution and you look at the case all the case law talks about it  has anything to do with malicious prosecution all right i think it was rarely leads to younger liability or is it about the sixteen minute mark so  on police officers doing their jobs without fear or suffering catastrophic financial consequences if suit and to answer the question before how do you experience representing officers and their unions the union indemnified our review both of the cases and personal experience have only been two cases where the city has denied and dunked occasion after jury verdicts and both of them a factually regulations and procedures which clearly they are not to see c r b findings are just allegations much like an arrest in the criminal context the police commissioner and the police commissioner alone has exclusive power over discipline and it's not until  totality of the interaction that officer santiago had with the prosecutor's office can be measured in minutes and i'm sure that there will be some questions on that so i won't go into it until that happens  the district court improperly relied on the jury's verdict against the law to santiago for false arrest to find that you engaged in intentional wrongdoing within the meaning of general motors for fifty k three and lastly the district court use the video as a basis to deny you can dump occasion and it's our contention that when you look at the totality of the video helps not hurts your talents position  significantly every court that's ever confronted you down to cajun issue as required evidence independent of the city's self serving reasons but the nile the city's opposition here nearly reiterated the court should we demand the case for never again three hearings on that issue because as judge calgary's indicated there are many issues with regard to the standards that are applied by the city in making these no matter what and that includes cases where there was agreed just conduct it includes cases where there were punitive damage awards they didn't get into fighting each and every situation bar the two cases that we mentioned chocks  to the city is the city allowed to disregard state mandates even i mean maybe for have previously did the city's wrongful conduct doesn't really write a state law it doesn't but it what the city as mr youngest stated initially made a determination that they were going to condemn the fight both accounts i understand that i understand that but the city doesn't decide what the ultimately what the law is courts do we do and so mike my question to you is if the law issue bill was against you what does the matter with the city's done previously whether you like it and maybe maybe bad policy by the city or maybe you know politics by the city but that's not the issue we had well we understand is here is that that conduct by the city which has essentially been left on challenge up to this point now puts limits on the city's ability to identify according to state laws that it i'll of course i'm not saying that you are but i'm saying ok sensibly what it comes down to is that there has been  treatment and in this particular case the record is not sufficient for this court to make the terminations whether the judicial review that our clients when i don't tell you i don't think i would suggest you that what they did in the pas review we never got the chance to do what we asked to do which was to conduct the hearing sold out the city's policy with regard to the exact issues that you're raising punitive damages intentional conduct all of wasn't done so at the very least we are asking that the matter be remanded back for a fact finding hearing so that the questions can be answered with regard to the standards that the city applies in this being done with the rules or regulations and where they have not engaged in on doing or intentional medical or recklessness nd of all the williams vs new york case from the court of appeals which is the controlling precedent from the court of appeals on a state law issue loses determination to the corporation counsel and provides that the courts disturb that decision only where it lacks the factual basis  is different about this case it's st of all the procedural posture we we went through a trial here but also what's important to recognize about the city to them that occasion decisions is oftentimes when they're made early on sometimes these earlier decisions finds credible and officers accounts right did not provide the factual basis point on this occasion what we have in this case which is very different is we had a video come to light that very clearly showed the officers not only violated mr constitutional rights but lied about it in official paperwork right and this provides not only a factual basis for an implication but if it's actually hard to see how you can even find a factual basis to indemnify in this case right this is very different this is a very different case for that reason and i think that the officers just completely ignore that  that the officers violated rules and regulations and in the alternative that they acted recklessly or committed intentional wrongdoing that ends an inquiry and the other cases that they point to are distinguishable for all the reasons that i've just cases that the opponents point to for the st time on appeal mind you so i don't even know that it's really properly argument before this court but one is in a case which is about twenty five years old i was in high school when this happens decades right and that is not a basis to find arbitrary i guess the decision on this record where all of the concerns that were voiced or were questions in hindsight about may be you know should we really have some factual issues i think everyone has seen the video and as pointed out earlier the jury and the court allowed to rely upon the video it was undisputed objective evidence at the trial to the extent that the defendants were arguing that plaintiff's testimony indicated certain things the jury and the court is allowed to look at the video and rely upon that as a judge was constantly categorized as refusing in order just for clarification purposes mr cooper was standing on the stoop of his apartment and  he was asked to move because of the noise complaint yes why he had to move and did not get a response i think in that situation that is a reasonable request it does not necessarily demonstrate that he was intending on refusing an order intending on causing public alarm and so and missy are also indicated that he watched the video and he said maybe there was about ten people watching which i don't think that's supported by the video but i think it's also goes to the lack of dispute of the public nature or public harm told which is obvious plainly indicated by the facts of this case as it was there and he decided with santiago on the criminal charges and then allowed the plainly wrong you're talking about police officers who are out in the streets protecting all of us who are entitled to do something in the course of their job to protection and they're left with this and are less system and the test here is really should there be it the law is you have to analyze this claim by claim it's just like sure and if he's entitled to indemnity on one of the claims and remember for false arrest this officer shows up twenty three seconds here is unfair to our client because there wasn't even a hearing where we could have explored why it was that the city offered to include our client in a settlement which by itself acknowledges that indemnity is appropriate  why it is that they relied on things that happened long after the arrest as a basis to deny indemnity none of the things and i want to address head on this issue about an erroneous statement on the arrest report that happened back at the state at the precinct after the arrest took place so you know it's not a basis to say the arrested south was invalid or at least you know you know subject officer and trying to help someone who was not cooperating with that arrest he's not getting out on his own he's going to have to pay this out of his own pocket even though that was clearly something done in the course of his  the fact that the city settled the case out from under our clients over a five hundred dollars disagreement about whether or not they should contribute that is part of the racket it was raised in the corporal oh it was raised in  papers at understand what you're saying but i don't see how that's in any way relevant to a juror jury finding a punitive damages absent a jury finding being thrown around there's a certainly a legitimate reason for the