york please the court my name is steven warshaw ski and along with my co counsel thomas petrofsky we represent the plaintiff carmen chip aloni and this appeal from a decision by district judge donnelly of the eastern district of new york dismissing the plaintiff's complaint against the city of new york alleging a false arrest based on the faulty design and operation of the n y p d database for orders of protection which resulted in mr chip aloni being arrested for violating a temporary order of protection that had been dismissed nearly two months earlier but which was still reported in the database as acting the district court erred in concluding that the plaintiff failed to state a plausible claim for municipal liability in this case conceptually the error here was treating this case as a species of basically a street level false arrest case where the plaintiff is trying to show a policy or practice of the city through an aggregation of multiple instances at the street level but what we have here is the n y p d database itself and we are alleging that that itself is an official policy or program of the city of new york it's established maintained and operated by the city of new york and so consequently the city can be held liable under section one hundred eighty three for constitutional violations that stem from the faulty design and operation of that database now what does the complaint allege in terms of widespread pattern of false arrest well in the complaint what we've alleged is the facts of mr chip below nice case we've alleged information to other cases so it's three cases over a period of about twenty years that's correct your honor as we can of lee acknowledge in the complaint we don't have either in the case law or in say the published news reports specific information relating to particular allegation although there have been prior cases the vols are cell cases probably the most on point but our point is that that analysis is really a political to those street level claims those claims where you're trying to show that the city had a policy or practice through this widespread problem what we're saying here is there is a database that is the policy or program we can prove that there is a flaw in the database both through mr chip alone the situation as well as the n y p d patrol guide which describes the operation of the database and lines below i'm sorry if you make a profit you said you have the evidence and my question is did you make a profit along these lines below yes what we allege that in the complaint and for example the n y p d patrol guide sections were included in the city's motion to dismiss so that information was before the district judge argument based on the patrol guide is that the betrayal guide describes what this and y p database is and it specifically does not mention it notably does not mention you clearly allege a flawed database yes what i don't see are allegations that a lot of people were falsely arrested because of the failure to remove out of date orders of protection mean where where wh is the factual basis for that assertion the factual basis for that assertion that we are aware of now would be the foil request information the information that we received in response to the foil requests that we made to the various district attorney's offices the new york county district attorney's office did provide us with a substantive response and we specifically asked for information about people who had been arrested and charged with violating an order of protection whose charges were dismissed prior to arraignment which is what happened with mr chip aloni and that information show that that  eight percent of the arrests were dismissed they said that yes approximately ten percent over the period we asked for which was almost eight hundred people now we believe and we certainly submit many of those eight hundred people were falsely arrested because of an out of date order of protection well we can't answer that question the city the county did not provide us the district attorney's office did not provide us with the backup information the requested about those cases we submit that it's reasonable at the plausibilities stage of a proceeding to say that if we looked at those eight hundred cases we're going to find more cases than just mr chip alone it's implausible to suggest that mr chip aloni is the only person who's ever been arrested in the city of new york based on an out of date order protection so we think that we have the claim which is based on the database we can support the an hour says that the debated base is faulty based on mr chip aloni as well as the patrol guide and we think that the foil request data gives us sufficient information at the pleading stage to suggest that this is a sufficiently widespread problem that it should be addressed in this context so we submit that a case like this if we were allowed truly limited to discovery to look at basically what were the files on all those cases when they were not even they were dismissed before arraignment we would see in those files which ones were dismissed perhaps because the complaining witness decided not to press charges but we also see the ones in those files where they were dismissed because the d a s office confirmed that there was no border protection in place and therefore there was no valid arrest cathy park for the city of new york simple on a claim fails for two independent reasons he has insufficiently alleged notice and he hasn't sufficiently alleged causation and for either of these reasons his claim was correctly dismissed and i'll address them each in turn first on the element of bonus simple and he hasn't possibly alleged hasn't there is no regardless of what the database is you hasn't officially he hasn't possibly alleged that the city has an official express policy of not updating its database and it's certainly not something that's expressed in the database and one way you can show that is by show you can have it some kind of direct form of notice some kind of smoking gun evidence or a statement from a high ranking official which is an alleged here that's right your honor so the other way would be constructive awareness through through pat widespread pattern of unconstitutional arrests that would have been the result of such database errors and we don't have that here at most he has pointed to t just for court cases that are seventeen years apart his own arrest wouldn't constitute notice of a policy of a policy or practice and again out of those district court cases one didn't even involve a database so we're really just talking about one instance that he cited i do want to just just take a circle back and make clear that the patrol guide provisions that he's relying on make clear that it's really really talking about a state maintained registry here now i do acknowledge that there might be one instance in the patrol guide provisions where it may be in big us whether it's referring to a state registry or  relevant part of the patrol guy provision looking at forty eight of the appendix makes clear when a state database inquiry reveals that there is an active order of protection in effect unquote that's when the maintaining it because we're it's not we're talking about a state maintained registry here so i do want to make that point and even that aside again he would need to show a pattern of constructive constitutional violations he has inside enough instances in the district court i'm sorry the district attorney's statistics that he points to aren't sufficient either you'd really have to resort to speculation orders or direction your honor it's not possible it's possible certainly but it makes clear that you need to show more than a possibility of a scenario in order to to go past the pleading siege and survive a motion to dismiss  it is impossible because there could be a number of reasons why a number of very good reasons why these dismissals occur at their and stage especially since for especially particularly considering the relationships that are at issue here often those victims are hesitate or change their minds about pressing charges that's something that's been recognized by courts universally and certainly even it reflected in this particular case where  girlfriends with the original order of protection decided to drop those charges and so because that could very well be the possible reason to explain why these missiles are occurring he simply hasn't with more facts in order to be able to unlock the doors of discovery your honor just very briefly we also argued that a separate ground for firming here would be the lack of  in the arrest report shows a second on really a second charge for the arrest that is that is unrelated to the elements of of so it was for aggravated harassment  was the second charge the first charge was for contempt of or based on the violation of the order of protection and the elements of aggravated harassment have nothing to do with the database and so he again there isn't a showing here of causation or and an identified causal link between any with the database and his own arrest to be able to prepare to prevail the city's approach to trying to defeat this complaint is to address certain aspects that are more appropriate on summary judgment with respect to the state database we've shown that we've sufficiently alleged with supporting evidence that we're talking about an database if there is an argument to be made at the n y p d really in some sense lacks control over what happened here that's something that goes to the merits and should be done at a later stage in the proceedings the issue of causation likewise suggests that there's an independent reason for why mr chip alone he was arrested i would point out and unfortunately it was my oversight i did not include the original domestic incident report in the record although i have copies with it the original domestic incident report only charged mr chip aloni with contempt for violating the order of protection and in the narrative section of the original domestic incident report it only described that issue that's the document that we relied upon and that we alleged in our complaint the relations document and the arrest of the boy and the what arrest so my understanding is subsequent to the actual arrest at the location the officers will go back to the precinct and they will prepare various documents there's an n y p d complaint form an arrest form and so on this was prepared afterwards yes it definitely would have been prepared afterwards and once again if the argument is there is a intervening or at least an independent reason for the arrest that's going to the merits of the claim and that requires at least some preliminary discovery into what happened here with the issue of notice well i think that there are a couple points here number one it's the city's own database and they know how it operates or they're certainly should know how it operates and if there are numerous people who are being who are not being charged by d we have indeed alleged a non speculative claim thank you thank you reserve decision that concludes the calendar for today i'll ask the clerk to