and now we'll have judge livingston rejoin the panel and the next case on our calendar is moment michel and others versus the city of new york trip to this court in this case judge pooler having been on the original panel that heard our first voyage here unfortunately following re man and the district court once again aired this time in granting the defendant summary judgment motion on qualified immunity grounds based upon district of columbia versus was big the district court erred in failing to consider critical distinctions between was b and the case at bar for example in west b the police had reports from neighbors including a local politician that the property in that case was vacant and also determined through diligent efforts that the purported host of that party really did not have permission to be throwing the party and they actually reached the owner of that property who said that the people who were there did not have permission to use the party in the case at bar despite this property having been on their radar for over a month since lieutenant caesar had gone in and this summer of two thousand and ten the defendants did nothing at all to check the ownership status of this property they didn't call the number on the real estate sign that was posted prominently in their front yard they didn't look in any city database to see who was the owner they didn't contact the new york city law department or the n y p d legal bureau to say we're concerned about parties here maybe it's a nuisance start a nuisance proceeding they didn't even on the date of the incident when one of the officers said he was concerned because of electrical wires running to the neighboring property they didn't even go a knock on the neighboring property to see whether or not it was owned  same person talking about argued probable for the qualified immunity analysis yes that is that is the analysis if we go with the district court's disposition and that's a different isn't that enough for arguable probable cause well there's a very important distinction with westby in terms of the way they enter this property and westby they knocked on the door and somebody left them and they walked in with consent here they smashed their way into the apartment through the rear door with no exigent circumstances and no consent clear violation of the fourth amendment we didn't make an issue of that in this case because we have a standing issue our clients don't own the property but as part of the totality of the circumstances that this court will look at evaluating whether or not there was in this case arguable probable cause or probable cause you can consider the fact that they burst in there and began barking at people and speaking at them aggressively and threatening them harvey mitchell testified a few of the officers had their guns out there certainly no surprise under these circumstances that people might be hesitant to say who's running the party or who owned property  in addition some people like my clients did not know they were invited there by the d j s they came in they had gotten a text blast but there was a fun party going on and they went to the as people often do without knowing exactly who the owner was or who was hosting it just that there was a party there just draw a distinction with was it doesn't work in your favor which is that in was the authorities had probable cause for the ensuing con no your honor not on of the people who were at the party had any duty and in fact they had a right under the fifth amendment to not speak to the police but we're looking at the mitigated by anything that happens inside but your honor if you look at the facts in the most favorable to the plaintiffs as is required on the defendant's summary judgment there is nothing suspicious about these circumstances you have to be able to show that the facts looked at in the light most favorable to you would not allow any reasonable officer to think he had probable cause without his correction take another important distinction with westby and westby the stories that were give by the party goers were filled with holes and contradictions here the stories told by the officers were filled with contradictions number one you have three of them committing perjury on fourteen separate trespass affidavi stating entirely false way that they had an affidavit on file from the owner managing agent making men the custodian of the property allowing them to enter the property and decide who have in their sworn testimony one of those officers saying well i thought it was said he owned property and if it's city own property then that equals and aftab property even though the f that program is only for private owners you have another one of the officers officer sure sware harvey's arrest assigned the arresting officer who says he was told by his supervisor lieutenant caesar that the bank owned the property and that on monday this was a saturday night on a on monday  the bank would fax over the affidavit that was required for him to fill out his sworn statement the arrest decision maker kept him galaga said he thought the realty company owned it with no basis whatsoever for that and it flies in the face of what anybody would expect when you see an excuse me a realty sign normally or a realtor reselling it or renting it for the owner now it's possible to realty company owned it but he had no basis for that these officers had no basis for any of the things they said so if you look at the facts in the light most favorable to us you have officers who broke into this property with no knowledge of who was the owner they saw a party that was warm with heat with furniture harvey testified about love seats in a bar and music all sorts of things set up and it looked nice with water running began aggressively telling people answer my questions or you're going to be arrested and then arrested everybody in retaliation for the fact that they didn't get the answers they wanted and kept them got a said if you as you said this start the officers may have lacked exigency they may have lacked information is sufficient information as to whose property it was when they went in but your clients don't have standing to complain about that because if they had if they were social gas they could have established standing if they could make assertions that gave them the status of being a special guest but they're not claiming that they were in the building so then the officers come in but actually that's not where you're you have to you're focusing us on we're just focused on was there problem because at the moment seize your clients were arguable probable cause to believe there was a trespass and don't we consider and there were two people who were in the property on december fourth when the tenant caesar went in a month over a month before she she just surmised and can you actually that it was abandoned and never did anything to follow in the despite the fact that think a lot of said he was under the belief that there were parties there routinely nobody followed up no police officer or a police supervisor did any police work to actually do try and that's and qualified immunity is not meant to protect officers from liability where you have this sort of plain incompetence and these law he's qualified immunity doesn't protect officers who knowingly lie about material facts about trespasser arrest by perjuring themselves on trespass after their offensive that's on information and believe the information and belief was based upon a false fact they set on information and belief we are the custodians of the property because we have an affidavit they say they made a factual of german that they had an david from the owner which didn't exist at all and it's conceded by the defense it's in the record they stipulate that it was not on the date of the incident after that and i ask you want us to take a look at footnote seven to our moving brief which is a very long footnote that gives quotes of the testimony of each of these three officers who filled out each of these fourteen perjured affidavits and i think you'll see that their testimony is absurd and there's no way to look at these affidavits as being anything other than perjury and the reason why they did it if you look at the facts in the light most favorable to us the most obvious explanation is that they had arrested everybody out of pique because they didn't get the answers they wanted and then scrambled around afterwards to try and come up with some sort of justification for these mass arrests and this perjury was part of it in addition melinda this arresting officer officer brian todd see it made it that initially his supervisor initially they were told to make a trespass charge on the arrest record but his supervisor said that because they couldn't find out who the owner was she was not to have trespassed put on her arrest report so he admitted that there was knowledge that the trespass arrest couldn't hold water here and addition a little bit over time but in addition in the panel's first decision judge opinion in davis versus the city of new york in its discussion of new york be brown and the fundamental element in a trespass arrest that before you make a trespasser arrest you have to know that the people don't have a right to be there or have a reasonable basis to make that conclusion and there was no basis this the first panel summed it up quite well and said pelley is mass arrest  this record could easily be found to have been based entirely on baseless and on reasonable conjectures and assumptions as to the ownership of the property that's not an element of the charge of dressing about the affidavit that the officers testified that they didn't understand what after meant they believed mistakenly that it meant variously a vacant building or one owned by the city and they believed that the to support that would be forthcoming this was a two fifteen or something like that in the morning everyone i don't affidavits that exists is that correct i believe your honor that they are test i think their testimony was that they thought the affidavits would be coming and then they never did but they relied on them in their own affidavits even though there were no effort on which they rely yes they were mistaken and there is no dispute that these are not perjury i don't think so your honor because what do you think it is well if you it was a it was a mistake the police officers mistakenly believed that they had the information coming so they filled out their people work in advance and nothing and there's the reason that it's not plausible to infer that it was perjury is that nothing flows from that they didn't support their arrests to she was stablish that this was an aft upbuilding because that's not required you think even officers who file if not perjured false affidavits are entitled to qualified group of people that were arrested in a home and here are the undisputed facts about the situation the home was sparsely furnished with an empty fridge empty cabinets melinda mitchell testify that she she did she wouldn't necessarily say that anyone in the nine one called nine one one then didn't want to pursue it but there was a real estate not telephone number on the front lawn did anyone ever call that agency no your honor and what did the police department ever call once to find out the more than from two fifteen in the morning it was there for a month was not but there wasn't an ongoing investigation into this building your honor there was some knowledge by some of the police officers that there had been problems at this location before but there was no ongoing investigation and w search of records to find out who the owner was not at that time when i didn't ever do to the best of my knowledge somebody did call the real estate sign of the real estate number at some point after the arrests but there's nothing in the record to indicate what came of that inquiry to play with incompetent these cops and you want to give them qualified reader the inquiry that this court has to address is whether or a reasonable police officer on the scene could have inferred that the people at this home knew that they didn't have permission to be there trust us that they were trespassing on the home was sparsely furnished there was nothing in the fridge and nothing in the cabinets this is unlike westby where there were were there was food in the fridge toiletries in the cabinets but similarly the court emphasized that the homeless partially furnished it was heated by space heaters that were plugged into extension cords running to a neighboring property there was a stripper pole makeshift dance strip area just like in west b in this home there was garbage on the floors loud music they could be heard from outside the building harvey mitchell testified that he could hear music as he approached  people scattered when the police entered they tried to flee that undisputed and all of these things taken together along with the fact that when the police asked who was the host of the party who was the homeowner how did people come to be here it's undisputed that nobody offered any information for the police to investigate unlike in westby where people identified who had invited them and the police were able to contact that person and ultimately contact the owner of the home here no one offered totality of the circumstances and here you have just as in westby a number of factors that indicate that the home was vacant and the people there did not have permission to be there and then you have people who are not willing to offer any information so there is nothing to undermine entitled to consider whether a group of people offer an explanation why they're all in place in the middle of the yes as part of the totality of the circumstances so your hon the rugs on the floor is that under spitters that this record it's undisputed that drugs were vouchered there was cocaine and marijuana found at the scene that there were baggies on the floor i believe is undisputed  although how many it might be a matter of dispute and then just quickly tribunal to anyone no your honor they were found on the floor and nobody was saying anything and in fact i believe that people were arrested for lloyd loitering for the purpose of using narcotics i think was one of the one of them charges noted on the sheet because a lot of the police inspector testified that he i gather in from your argument that you're suggesting that basically this was property that even the owner wasn't using in that that would add to the suspicion that people were on the premises without permission i mean workers reveal whether the other homeowner gave permission there is no information about that in the record i was so we don't know for it was illegal could have been given permission you don't know your honor but at two fifteen in the morning it's reasonable that the police officers didn't go knock on the neighbor's house to find out and it's again in context of a building that appears vacant for a number of reasons there's very little furniture it's filthy there is drugs on the scene there's a stripper pole and then you also have extension cords running to the neighboring house which the police officers took are they running into the garage that wasn't clear to me and they i believe that they were running from the garage into the neighboring house so they were attached  just to quickly address the second issue of the malicious prosecution claim that plaintiffs are seeking to revive this court has already ruled out that claim and nothing in the supreme court's decision in manual changes the controlling law or  got rid of the actual malice elements of a malicious prosecution claim the court there was addressing a threshold issue of whether the fourth amendment houses any claim for a pretentious pretrial detention and nothing in that case change the law or should change this take one extension cord and plug it into one outlet and therefore use everything in the house you'd blow the fuse were there were multiple lines you are what you said the suggest i'm asking you what we know from the record because i couldn't find it as to have then they got access to the electrical service of the neighbor i mean i i wondered whether they had to go into the transformer someway your honor i'm afraid that i don't think the record gives us that information there's just the testimony that the electricity the source of electricity was the neighbor's house but if there's more detail in the record i haven't case that the initial panel had cited to by judge davis versus the city of new york states as follows probable cause must extend to every element of the crime for which a person is arrested and of course the state cannot rely on a person's exercise of her fifth amendment right to remain silent in order to satisfy that burden and especially as i reiterate in light of the way in which they entered and the abusive and belligerent manner in which they were treating these people who we have to remember all these folks had done was go to a party just in order to enjoy a saturday night among some other people and dance and talk and what happened to them was really outrageous tomorrow is the eighth anniversary of these arrests and for just simply going to this party they wound up cuffed brought to a precinct put into a cage and then charged with crimes now harvey was charged with drug possession formally on a criminal court complaint in addition to loitering for the purposes of using  drugs now that's not at issue on this appeal the only basis that judge kaplan ever discussed was to trespass and justification for the arrest that the defendants put forth but clearly under ybarra versus illinois and the need for individual eyes probable cause there's no basis at all to link some small amount of drugs that were found on the floor with each and every person who was in there in fact officer sure suer admitted at this deposition that the likely reason they wound up on the floor like that is when the police came barging in somebody who had these small bags just threw him on the ground because they didn't want to have the drug it's associated with him or her as for the supposed stripper pole harvey said there was a poll that was in a room and the only person who said they saw any topless person was officer shifts where who said he saw one topless woman now i'll also note that if there was a poll whether it be a stripper pole harvey said he thought it was just holding up the ceiling and to make it look nice but if it was a stripper pole it was a fixture it had to have been put in on purpose by the owner otherwise you can't do the gymnastics that are necessary for a stripper pole or it will fall down so that has nothing to do with arguable probable cause now in ways be the court looked at the drugs and a whole different set of what justice thomas called debauchery going on there there you had what appeared clearly to be a commercial strip tease operation had women with money in their garter belts also looked as though he didn't call it a prostitution  themselves the fact that one person maybe more than one person had some small trace amount of drugs in their pocket that has nothing to do with trespassing go to any party in the city somebody it's got some drugs on them and a bar in this that people use drugs in their own homes as well now just to briefly address the malicious prosecution point the only way that you can read manwell versus juliet and have it make any sense is to conclude from it that there is no subjective malice that can be required for a fourth amendment claim because the fourth amendment is a standard of objective reasonable miss the fourth circuit in the six circuit have already clearly held that  prosecution claim that's as i said in the brief yes and that might be sympathetic to the ultimate argument but i'm not i'm having difficulty reading the manual to get me there i mean expressed it declined to address the elements and we have this decision in landing where we talk about the effect of the decision we again don't directly address malice but we seem to suggest that it still  or the court only explicitly decided that the fourth amendment applies to these post arrest pretrial wrongful seizure claims and not the due process clause but what that means since the fourth amendment is looks to objective malicious prosecution claim in quotation marks because of a lack of malice and that had never been breached in front of this court judge kaplan had initially thrown out the malicious prosecution claim because he determined that there was not a seizure held that a desk appearance ticket which my land received initiate a prosecution and swartz v and so on i said that if you have to go back to court based upon criminal proceedings that were initiated by a defendant officer that's a seizure the two together creates ledgers and there was a seizure so for those reasons in this malicious post arrest pretrial wrongful seizure claim should be reinstated drama's thank you thank you