may please the court my name is rick ross troof and i am here representing the appellant howard norton i am proud to stand here today representing mr norton because i think a lot of people who are accused of violations just pay cut a deal pay the fine and go home mr norton does not believe that that's appropriate and in preparing for this i read the albright case and i also listen to the recent supreme court  arguments in the seventh circuit appeal emmanuelle and one thing that is clear from reading those decisions and listening to the oral arguments is that our supreme court justices don't necessarily entirely agree on how all of these rights are supposed to be formulated but one thing they do all agree with is that going back to the time of the magna carta and certainly our bill of rights one of the fundamental things that our constitution was designed to do is to protect citizens from government abuse and in addition to federal protections in the bill of rights which are at issue in this case justice stevens in dissent talks about illinois law but it's equally applicable to new york and what he says is illinois and in this case new york has a procedure intended to ensure that evidence of probable guilt has been assembled before a criminal prosecution is initiated before a criminal prosecution is commenced is critical because as all the supreme court justices seem to recognize and as this court to seem to recognize in many of its decisions regarding liberty interest being accused of a crime is a very serious thing that has very serious consequences now in this case the crime was a violation but the violation carried the potential for fifteen days in jail and not he was a fifteen days in jail but fifteen days in jail for each day that the violation existed which could have theoretically put my client in jail for months on it and certainly required him to go through the expense o and required him to be subject to the processes of the court and appear in court whenever required to do so and it but i believe reading the case led shows that simply having to hire a lawyer and be subjected to the process of the court is enough to affect a liberty interest a new york state is put into place to protect procedures to make sure that before the government to new york as many criminal procedure turned into federal liberty interests are you know i don't think that i am how are we to tell which ones should be promoted in that way well i think that one thing is clear is that the ones that are designed to ensure that evidence of guilt has been marshaled and assembled prior to a criminal prosecution being initiated that those are the procedural protections that are required by the constitution why is that the federal constitution does not require that at least i mean we're talking about after all is not whether there of course it is required as a matter of federal constitutional law that there is probable cause but that probable cause of the to initiate a prosecution could be based on on hearsay testimony no new york says no which is fine and is more protective of the individual and so you may have some state law claim based on that but why does the fact that new york chooses to be more stringent create a federal liberty interest that doesn't independently exist under the fourth amendment the key is the reason why new york has that and the analog is reasonably new york has good reasons were every criminal procedural they adopt if new york chooses to adopt certain evidentiary standards for  example those those standards would be there to protect someone against wrongful conviction presumably to assure that no innocent person is convicted even if some guilty go free that's of course that's that's the judgment that new york makes about that balance why does that distinguish this rule because the reason why that balance is there is because in the case where information is used for a violation you don't have the  grand jury requirement for initiation of any prosecution even down to the violation level that would also be an additional protection of the right not to be  with that also being a federal constitutional right i believe that the point is that the federal constitution does require some review for facial sufficiency before a criminal prosecution is initiated in new york does require that in a grand jury the there not be hearsay testimony something that is not required as a matter of federal constitutional law or even federal rules are you using to and that would be a protection against exactly this requirement for you suggesting that the introduction of hearsay into a new york state grand jury would violate the federal constitution of their permission and due process i'm not sure about the response to that but i do believe that it is a violation of the federal constitution when you prosecute somebody without even alleging the elements of the crime that you're prosecuting them for and in this case that's what we have here we have it's not only there are two issues i mean there's multiple issues but one of them is the here's a issue the other issue is that that if you look at the rental permit for example violation here to be in violation of that law you have to be renting the property as a residence and if you look at the information in this case it doesn't even make that allegation let alone on a non hearsay basis it doesn't say that and similarly on the storage there's no allegation and there's no evidence whatsoever anywhere that anyone can cite to that mr norton had anything whatsoever to do with the car being stored the way it was stored to the contrary the evidence in the record is clear that the town thought somebody was renting the property that the car went on fire while it was in the garage and town personal apparently pushed the car put out the fire and pushed the car out of the garage and left don't even know that it was unregistered because they've just put a conclusion reallocation into their into their information and they think that's enough but it's not enough there has to be some explanation not a conclusion if i bring a discrimination i can't say my client was discriminated against and i'm going to survive a motion to do miss no i have to explain how i know that person was discriminated against similarly you can't just say a conclusion the car's unregistered you have to sell look first sticker there was no sticker there that allegation doesn't exist there are so many defects in the way that the town went about what they did in this case that it is shocking and they took advantage quite frankly of a system that they know people show up early in the morning they cut deals they pay the money and then they go and most people don't have the money to fight the criminal charges or to bring a civil charge afterwards to address this and so these  we haven't done discovery so we don't know but we do know that there is a policy that these notices are sent out for people to show up at nine am in court when court doesn't even start thirty and we you know and that's alleged i believe that people come to court and settle out these cases but more significantly in this case the allegation is that supervisors knew about this and allowed it to go on and to the extent there's any question about that i think it was three to four letters which are all in the record were sent to the highest level official in the town's law department her failure was not to respond and letters now we allege that she was i believe that a mono claim exists if policymakers can be found to have been deliberately indifferent to a constitutional violation and here we have multiple letters explaining the constitutional violation and they continue a prosecution that it took a state court judge one day to look at the motion and one could look at this in say and other policy makers who were directly involved also were informed of those constitutional violations and were deliberately indifferent to the fact that they were ongoing and that alone supports the claims are we talking about a ample cases that say want to policymakers informed of something and doesn't take action to correct it that's enough to have a policy in practice i mean quite frankly the policy in practice language is very confusing and misleading it really should be a deliberate and different test which is what policy in practice really means anyway but putting that aside it certainly exists in this case for a variety of reasons not the least of which and the one that's most unequivocal and most clear is that policymakers were participated in this and at a minimum notified of the problems and never took steps to correct the fact that there were constitutional violations going on and therefore they condoned or otherwise indorsed the practices and quite frankly i believe it's pretty clear why they allowed this to go on because they all knew mr norton were because they were involved in two decades of litigation with this man because he had one norton one it cost them a ton of money and he was causing them a lot of headaches wind because he was trying to get them to comply with the law because it wasn't acceptable to mr norton to allow the town to do whatever it wants to do to its citizens who usually in the reason why you don't have a lot of other cases because if i'm a citizen and i come to court and told to pay one hundred dollar fine or possibly be criminally convicted and have to pay a lawyer to deal with this book people line up at those things and pay the hundred dollars and go on with their lives lead let alone let these kinds of things go up to you know state long it shouldn't be necessary but with the type of on found that scottish constitutional allegations that have been made that don't pass the plausibility test of vic ball and tom boy were required to address them with a local criminal court judge probably determined that the accusatory instrument information laid out sufficient probable cause to proceed there goes the initial point the content of that accusatory instrument which it begins at page one hundred seventy nine of the appendix is incorporated into our rule twelve motion and it goes beyond the hearsay which is sufficient under new york criminal procedure along substantive law to support the accusatory instrument to show in detail that that's already in the record but basically leaves mr norton no harbor to try to launch a ground war section one thousand nine hundred three action on the time you run it to the contrary respectfully submit note which is the tenant said to me i am the tenant i rent it from mr norton i have rented it for four years i pay over fifteen hundred dollars per month rent all of those are such crystal clear and dishes of probable cause that all of these claims must be dismissed on a threshold basis and these are part of a rule twelve c motion is yes because there was no y to support a of the initiation of a criminal prosecution so the local criminal court judge judge goebbels first denied the motion to dismiss saying that you can consider the hearsay allegations there sufficient to issue a warrant to proceed with the criminal process and initiate a violation violation level process on a motion to dismiss the second motion he said it's insufficient to support a conviction because it's based on hearsay we quarrel with that but the point is even that judge pool is not itself a favorable terminations to support the worst motions prosecution claim on the settle cases so what we have here is probable cause no it's not your honor we have numerous cases cited in the brief that and it's let's of bringing a constitutional claim or a tort claim of malicious prosecution it's not a determination on the merits that supports it and that was the statute of limitations based dismiss but it's no different from one involving the sufficiency of the accuser's story instrument on a motion to dismiss but there are but your honor the evidence of probable cause is overwhelming as facetious to say that one a code officer was called to a home to follow a fire observes a burned out truck on the premises multiple occasions up to seventeen days speaks to a tenant who says i'm is no rental permit because that's not the spirit that i rent the entire house that i pay specified rent that that is just an insuperable bar to all of these claims justifying that this missile and ending the burden upon the talents officials to defend themselves in the united states district court and before the second circuit to justify a manipulative pleading in the face of the therapeutic you'll rule owns rental homes throughout the town of islip which he claims are subject to unconstitutional imposition of the rental law well the rental permit law is constitutional it's not being collateral his own allegation is that he's in the business of renting homes that require a permit and he maintains the law is unconstitutional he never demo nice that it's rented  complaint he has no plausible allegation that it's not rented he has no defense to the pictures of the burned out vehicle that creates a presumption on the new york state law that it submit this court can consider it on the campbells which was clear because in effect it showed there was no license plate there was no pump but there was no window to put a registration on this was a burned out vehicle the mon el policy is unconstitutional and that's the money that they are your honor receiving letters from at the fence counsel that challenges the legitimacy of legitimately and duly filed proceedings in a suburban town with two hundred thousand people that's over one million residential where they try to preserve the character they are carrying out a valid police power the new york court of appeals has said and we don't cite it in town a drawing that one of the most important police powers  exercised by a locality is the zoning power that was the case it's that they could stop fracking because it is the core function of local government to preserve the quality of life so how do you do it you have zoning statutes constitutional you have code officials that enforce it you have courts that require that it be done in accordance with the new york criminal procedure law none of this justifies the dignified effort this court is investing  mr norton's manipulative complaint where he says you know i want to rent my houses i think the rental permit law is unconstitutional and i'm going to write letters to the town that a deputy town attorney has not shown or alleged to be  policymaker with final decision making authority and says that's an indifference first of all there was no trespass there was no you can't trespass on a driveway there was no instruction or allegation that in this wreckage that's part of the rule twelve motion to enforce the zoning code in a reasonable way by saying he can't rent this house for four years for fifteen hundred dollars a month without a permit he can't leave a burned out truck there and he can't turn every technical victory in a local criminal court where there was probable cause and adequate stake or procedure and to a federal constitutional claim for a couple of quick question held there is no federal constitutional right to require compliance with local state criminal procedures with your view i take it that we could decide this matter regarding the individual defen continues to own improved residential real properties that serve as rental properties and or red bull dwellings in the town and which are subject to an invalid and unconstitutional laws provided for in the town rental code and here we are a rental property without a rental property permit is in violation of a lawful local code and he finds every what is the word permutation of way of stating everything but avoiding the concession in paragraph three or five that to me your honor is legal manipulation and i stand by that that if there's no other questions i think the court for your attention and patience  know just to quickly respond to this manipulation concept first of all there were declaratory relief claims which were not addressed at all by the lower court federal ones that should be addressed which are in defining paragraph sixty and sixty one of my brief and one of them relates to exactly what counsel was just talking about which is that to get a rental permit you have to swear and this is a town practice and it's their policy and it's their law you have to sign a document saying that the town can just alter your c e o alter your property rights at will and so that and the other declaratory relief that wasn't addressed by the lower court are serious issues it's not manipulation to raise them and we go through them in particular detail or least identify them here and you can look at them in our complaint i do want to also mention the dismissal of the criminal actions was not based only on non hearsay which i think is an off year also but specifically the court found that on page five eighty six of the record that while the ordinance prohibits the outdoor storage of unregistered vehicle it does not contain any language which per would permit the people to charge the defendant with allowing in maintaining the outdoor storage so in other words the lower court found as a matter of law and properly so is everyone should they were charging him with a crime that didn't even exist when it came to the storage of the vehicle because they're trying to hold him responsible for something while having no evidence whatsoever that he had anything to do with that story and that is a malicious prosecution claim under the constitution mr knew it was treated differently than people now there's no question about that the the evidence is right in the record his brothers owned the same property why do you think they went after mr norton and by the way they served him through his brother who theoretically would have been equally responsible to the extent any one would have been responsible and say we went to the property from your client i know that that's what the investigator says he says what he actually said i have no idea because we don't have any years and nine years say allegations but one thing we know that they don't even say that the tenant said i'm puzzled whether the allegation here is that mr norton was treated differently than everybody else because he's sort of a pain in the but the local authorities whether most of your initial argument was dedicated to the proposition that he's treated the same as everybody else and he's crusading on their behalf there there were a lot of actions that were taken here i do believe without a doubt and i spell it out in detail in my brief i mean only eight minutes doesn't give me enough to go through everything but i do believe there's no question that he was singled out to be mistreated because of who he is and what he did and i believe that that's unconstitutional violation of the first amendment but i also do believe that the town does have certain certain other practices like why was mr acker a town code inspector reporting to a fire it was either one of two things and i don't know what the pleading stage we've alleged that they had a town practice of sending the inspectors out to trespass and look at the property to find code violations what you say to us and i understand that because fire the fire down this is it's a reasonable thing to wonder whether there is some kind of code violation is at the town code specifically says that you need the owner's permission to go on to look for that the town code they put that in their code where you can just wander because they just wanted their first of all there were three the instance is a trespass is two of which happened long after the fire was done over and whatever but on this first one i don't think the government has a right because something happens on a property the government has a right to come in and look at your house and look at the structure and take notes and walk around in the back i certainly hope that's not the case i don't think that's constitutional and not only that that was only one instance how do they justify the fact that he was on the property searching the curtilage and searching around the house the two other instances that we alleged in the complaint and so you know there are so many there are so many different violations of mr norton's rights in this case that mono for example certain violations were saying the the town the town attorney's participated in the deputy town attorney participated in the town attorney was notified of other ones or products we did originally and we decided we needed decision not to appeal that and i don't believe that you do need to have any individual defendants to bring a one thousand nine hundred three claim under mon el so whether there was a qualified immunity or not doesn't change the fact that you can and i think it was the barrett case that made that crystal clear  so yeah i mean i think it's easy to say well that there were notifications about some by lation and mono is implicated that way and there were other violations that we believe occurred as part of a town practice and we believe that violated that way but you have the deputy town attorney saying don't go hold this warrant application until i come back from riverhead to handle it myself and you're saying this was a unique case where they were they were doing