next case on the calendar is walsh the city of new york been met the law is clear the officers may arrest the suspect unless facts are known to them conclusively established the existence of an affirmative defense that is a high bar and it was not met here first the officers didn't know what believe that no rational juror could find a lack of probable cause in this case and and to be clear we're not saying that the jury made eroni as factual findings this is a sufficiency of the evidence argument saying that you know as the standard is very deferential taking all inferences in favor of the plaintiff and now we know exactly what all the disputes are and we can do that we have a full record taking all those inferences in favor of the planes on this record the jury could have reasonably found that the two officers arrested walsh only because he would not drop the charges against i think the jury got out so i think the jury could certainly a found that those subjective motivations were at play no consequences for police officers who arguably act in a troubling way but in the one thousand nine hundred three context the right issue is the fourth amendment right to be free from arrest without probable cause and so here you go to the objective facts known to the officers at the time and those facts were that the plaintiff and medically punched mr doll in the face hard enough to break the skins also included midst of a dollar being brought to the precinct in handcuffs under arrest and all for sure i mean mr walsh was invited to walk over to file a complaint well your honor i don't really believe that the manner in which the two people were brought to the precinct testified that he took the plaintiff's id and directed him to go to the precinct both because i do and yes gave an instruction to come to the precinct in the investigation would continue there exactly and he testified he believed that he had a cross complaint situation that he might have to arrest walsh and that he had his id had his address and if walsh disobey in the instruction to go to the precinct he could find him at his place of work  and the next few days he told to go to the prison to follow a complaint i don't think that's clear from the record he was instructed to go to the precinct and his id was taken but again i just want to be clear the manner in which these two men went to the precinct really goes more towards what the subjective motives of the officers may have been at the time and you know the dollar was arrested immediately because he was behaving aggressively at the scene and we don't dispute that but after he was placed in handcuffs because of his behavior  whether the facts known to the officers conclusively establish an affirmative defense this is a fourth of i'm going exactly it's so the subjective motivations of the officers is the supreme court has repeatedly said are irrelevant we focus on whether there was objective probable cause is that an accurate statement of absolutely or on no it's your contention that at the conclusion of the plaintiff's case despite the evidence of improper motivation on the part of some of the was not probable cause was not grounded in the evidence that had been presented that's that's right your honor and i think the argument that the district court seemed to find persuasive and perhaps a jury did too is that the plaintiff's explanation for what he did for punching dahlan the piece was plausible and wasn't completely ridiculous and we don't argue that it was you know he what he did was on duty he was a security guard and there was a door that appeared to say exit only leading into the hotel lobby but that the standard is this court has articulated in garcia is not whether the plaintiff has a theoretically plausible claim of innocence but whether that claim is clearly established by facts known to the officers and here you know just because you're a security guard does not give you carte blanche to punch members of the public in the face to be clear your theory is that he had probable cause to arrest both men the officer at the same exactly exactly and they could have decided to arrest only by dollar but that doesn't mean that the arrest of the plaintiff have found that there wasn't probable cause i don't believe any rational juror could find lack of probable cause on this record because there was no clear evidence presented to the jury of an affirmative defense while they were there was evidence that it was self defense  clearly following that the officers are rushed or walsh because he would not drop the charges that's part of the factual scenario that's part of what's happened and you're suggesting that we ignore that and i'm i'm suggesting that under nine hundred eighty three it is an objective inquiry why it was that all the trial and i think for two reasons first there was a conspiracy claim that wasn't dismissed until the close of evidence and second that it could theoretically be admissible initiation you know that the police officers are not generally initiate a prosecution they're asked to be some evidence that they communicated to prosecutors they made it a criminal complaint the encourage the prosecution to take it to go forward here  officer who is a non defendant who was originally named as a defendant but then voluntarily dismissed from the case didn't testify at trial and there was no evidence elicited from him by the plaintiff to support this theory that he was just a pawn for the defendant officer precinct he's not placed under arrest he's not placed under arrest except his testimony until it's apparent that he's refused to drop his complaint wasn't the jury doing type entitled to take that evidence as  possibly some indication that the officers lacked probable cause that they must have known something else i think did not arrest him before that they only arrested him after he had refused to drop the complaint i think atmospherically you could say well doesn't this indicate that there may not have been probable cause and so what you do then is the fact finder is you go to well what are the end disha of objective probable cause here and is it lacking  and here on the objective facts known to the officers i don't believe any reasonable juror could find that it was lacking they they did not they were not inquire required to investigate his claim that it was in self defense i think that's clear from th and i think it is very important here that the district court the charge so something along the lines of for the plaintiff to prevail you must find that the finance lacked a probable cause was a part of yes i think i think the charge certainly laid out the law correctly and that's not really the basis for argument the basis for it presumably the jury was instructed that it could not rule for the point of unless it found a lack of probable cause that's right and it apparently found probable cause for you tonight lunsford because there's a split verdict and the way some other reason right well you wonder what reason it could have been but i think you know the question here is sufficiency of the evidence on objective probable cause and the district court was only able to explain a split verdict by talking about subjective motivations and you know that the question isn't whether the jury was charged correctly it's what is the evidence that was presented to them in which such as the courts shortage and whether that charge identified for the jury the important issues of probable cause which were employed with respect to both the false arrest coin and with respect to the malicious prosecution claim although the burden was different the the city refers to things like atmosphere  really what this case is about and because of your questioning i really want to focus on this idea of subjectivity more than some of the other things that i sort of had planned to start with because the city makes a big deal about subjective motives and it's true that the law is that even bad motives are irrelevant in the determination of whether probable cause is present if there's bad motives that doesn't convert a case with probable cause into a false arrest or malicious prosecution ok that's fine that's great that's the law but it's also true that bad note motives and conduct by the police amply on display here in the way they treated morton walsh that's another reality of the case so the city sort of picks that ball up and tries to run with it and they say that the conclusion by the jury of bad motive must have also clouded the jury's reasoning ability and that they therefore failed to identify the issue that was probable cause and even the judge's reasoning they argue in their briefs was clouded was disabled and he didn't understand the issues because he was so confused by the issue of bad intent but the jury would put aside the subjective motivations you do have who clearly was punched in the face who is  making a charge against walls why isn't that enough for probable cause many officers are not expected to conduct the many trial right then and there decide who they believe then they got a dollar telling him  this why isn't that enough to arrest was well it's the single most difficult point for the city in the case and that is because the single most important fact which george washington sort of alluded to in one way is that the police i think it's fair to say didn't do anything in furtherance of arresting walsh until he refused to dismiss his complaint against their former colleague and so there were many things that happened that the jury heard now but aren't you aren't worried then just speculating about what else they might have known i mean my problem with this is it seems very much like our decision and currently the police officers arrested bar owner for assault he says the bar at the bar owners assistant is insistent this is how many of these cases look saying i was trying to break up a fight he confirms the officers that he had punched someone we said there's no need for a more thorough investigation at the scene there's probable cause there are lots of fights where you have probable cause  and the legal process will sort it out there after so what did what does the evidence show what is in this record that says that this is different your honor this is not that case this is not the case because this is like shops first of all and that's a completely different case in which this court has also spoken in which it's clear that you know the facts can the facts of what occurred have to be identified and the jury as the as the city concedes was properly charged that the issue is what the police credible he knew and should have known right so there's a fight there's not a fight between two people joining the lieutenant once but at the scene knows that it's a security guard doing his job not letting someone push through and passed him in through the exit door into the hotel he testifies he has no reason to doubt really what walsh told him in terms of the truth of what walsh told him at the scene at the scene as the court has pointed out he arrested the dow and told walsh to go to the precinct to file his complaint that's in the record once word knew at that time that the dow had a cut on his face and he didn't do anything he didn't under arrest he learned nothing new in the precinct nothing new came out except a bunch of things that the police did that were intended to coerce mr walsh into dismissing his claims and that's what happened at the precinct fidel was bored and handcuffed with there's evidence that officer clark had a conversation with dalla which he engineered to be outside the hearing of the arresting officer he then goes into the room where mr walsh is waiting to file his complaint and he says if i want to know if you know how things work here in the precinct but you have to shit can this arrest those were the words used meaning you have to dismiss this case he then goes into the room and then comes out of there and goes and has a conversation with sergeant roach and they next have a conversation that involves asking mr pradelle whether he wants to file a complaint against walsh and that's the first time that we're cross can point comes up in this record after walsh is arrested for refusing to dismiss the charges clark is not done though he comes into the holding cell when mr walsh is being detained and he says to him i have a phone here your boss is going to call you and you better do what he says and mr walsh is heard to say by clar top counts and giving them both see summonses and once for according to clarke said do whatever you want i just want to get out of here so lunsford did own the decision to probably cause but the jury was not bound to accept that based on the fact th facts and the decision to offer parties if you want to go home to not you can take the seasons yes that was a decision that was a that was a an offer  officer clark went into the room and said to mr walsh you have to dismiss this case but in different words there were then offers made for both of them to take a c summons and a disorderly conduct not assault and both go home and watch could have gone back to work which ones would could have gone back to whatever it was he was doing but the jury and to important because obviously the standard that's been identified here is that the burden is so great on the city that they have to establish an absence of evidence for the plaintiff's that it must be concluded that the verdict was a result of sheer surmise or conjecture that's the law or on the other hand that there was such an overwhelming evidence in favor of the city that a reasonable and fair minded jury being identified here he said a police officer may rely on a victim statements or allegations and concluding that there is probable cause to make an arrest however if the circumstances raise doubts as to the arrest of the of what the victim said the officer must assess the reliability of the victim statements in the context of all the circumstances known or readily available to the officer those circumstances everything that the police did here and that's the problem that the city has dictate unimpeached during his testimony and the police officers were incredible their stories were contrived they didn't hold together you jury did not credit a single i'm not saying a single word the jury did not credit clearly the testimony of the officers officer lunsford was simply not as involved the court even referred to that he was not as personally involved he wasn't from that precinct he was from the seventy fifth precinct in brooklyn he was on duty in that neighborhood because it was new year's eve that night and these two fellows roach and clark i'm sorry one was a woman sergeant cork sergeant roach rather were were held liable because they were eighteenth precinct officers the very same precinct that mr the dalla had retired from he worked together with officer clark when they were together at that they were long time colleagues in that precinct i see my time is up unless the court has any questions much your honor i asked my colleague whether this case is similar to this court's decision i curly were a bar owner a bar owner undisputedly struck another man leaving a visible injury and the officers were not required to prove his version of events that he was just trying to protect his premises wrong before arresting him and i think that case is exactly on point here my colleagues referenced jock's vs to bernie as a more relevant case in jock's the defendant officer himself threatened gunpoint so surely he should have known that the plaintiff's response and throwing a phone at the officer was not just proportionate self defense and also it really happened because he was the one directly involved in the confrontation however that same officer was granted partial summary judgment on the plaintiff's other affirmative defense which was the emergency doctrine because even the officer who pointed a gun at the plaintiff and therefore allegedly starting the confrontation hadn't witnessed the facts personally leading to  that the emergency doctrine applied so here there's no question that none of these officers were involved in the confrontation and they didn't see anything leading up to when the punch was thrown so the object of probable cause  the fact that there was no facts known to the officers that clearly established any affirmative defense and may have been plausible and may have been successful at trial absolutely but that's not the standard we don't require police officers to conduct an adjudication testified that the jury found your test your client's adieus testimony that they believe was not credible they could accept part of it reject part of it or reject it on the new testified and two he charges to that effect right i believe they are yes the jury didn't believe their testimony  but that begs the question does this record establish probable cause on the undisputed facts it doesn't really matter what the disputes in testimony were when we take the undisputed facts and those facts are that there was a punch in the face that it was admitted that it caused injury establishing the elements of assault and then you go to what did walsh tell police and what were the corroborating circumstances at the scene that would have established an affirmative defense and here those circumstances did not exist he and your honor there's always going to be cases where it's going to make an arrest scene that's correct and he took the plaintiff's idea and directed him to go to the station where he would and at that point he had mr dollars complain that he was assaulted he saw mr dollars injury and he planned to take his complaint and also potentially arrest him at the station but again it's really not relevant here what's relevant here is what are the facts known to the officers the object admitted it's not like the dollars that he punched me and the plaintiff said no i didn't it was he said he said the punch was admitted the question was whether it was justified and whether it is justified for a security guard to punch someone in the face maybe it is i do not think that is