the of the appellant when the dependent came up behind him said nothing grabbed the shoulder at which point the officer then turned around and sort of pushed him away an event that lasted maybe about two seconds or so but as the district c recognized if you view the evidence in a light most favorable to the appellant there's a very different story and the story was one is that patrolman sullivan was not involved in any way in physically trying arrest the appellant's teammate that the palin simply tapped the officer on the shoulder and politely asked him you know what's in effect what's going on and why is my teammate in this situation and that this entire episode lasted about two seconds and that there was no practical neither an intentional no practical effort to interfere with what impede or obstruct the arrest of the teammate and under these circumstances and one of the points that the district court kept coming back to is we don't really know what patrolman o'sullivan was doing because there were so many different offices who had different points of view including you know sullivan himself who claimed that he was actually trying to put the handcuffs on but other when he said he's dealing with them i don't think that i would draw from that that he was trying to handcuff him i think there's no dispute at all sullivan was there it's clear that the officers were trying to move everybody in the direction of ten you and the the two teammates were moving in the other direction no no no that's not correct i mean there was the event the event was is that the there's been a stabbing outside this nightclub  or club of which these parties had nothing to do with and that the police then directed that the nightclub be be evacuated in a sense or emptied and that when everyone came out of the nightclub the police then directed everybody go to the right to tenth avenue which the appellant did and his teammate and everybody went to the right these events happened on tenth avenue so there's no question there but he was moving in a different direction he stopped and wanted to give some money to to a homeless person was stopped and them then your client came back when the no i don't believe that is correct or on the what happened was is that when they got to tenth avenue mr ranta got into the new book car and w characterized as homeless the police officer the man down on his luck but somebody asked him for money and that the teammate then reached out to give him the money and perhaps the police interpreted that reaching out is some sort of aggressive i think misinterpreted even vote he was just barely coming out of a car according to his story to tell his pal stop it and that you know might give rise to the possible probable cause because we might have thought that my problem with that is that there is no claim whatever  arrested him for doing vats the claim that the arrested him as to do with what he did were he touched or did not so if they were to arrest him for not following the order to disperse you'd think he would have done it right away and instead the claim is they didn't arrest me until i asked what was going on and that's a little different even if they could have arrested him for violating the fourth there finking that he was violating the order i agree with your character to one point i mean he did leave the nightclub he did leave yes he did he did he did he did and clearly the direction was go to tend the new he was on tenth avenue that is i've looked at the video in the record several avenue which he did and the fact i think if you're on is correct he's sitting in the in the you because he just he complied with that order instead what the argument is is that the tap on the shoulder asking what's going on with my teammate constitutes obstruction of ssion and i would submit that you know that is simply not so not only do we have the conflicting accounts of what happened but the event it's your argument is that taking the facts in the like most favorable your client question of fact as to what happened here acted i think there is a question of fact and i think the i think the district judge acknowledged that the district judge kept acknowledged said will we go through all of this what exactly was o'sullivan doing i mean how can you say  you don't even know what he was doing and i think i think in my view where the district judge went wrong was granting summary judgment but at the same time a good knowledge in that we don't really know what was going on here because there's so many different versions different perspectives o'sullivan was actually physically trying to put the handcuffs on because remember what mr patrolman o'sullivan's argument is his arguments i was physically trying to put the handcuffs on the teammate this man taps me on the shoulder so that momentarily diverted my attention from what i was doing but as a district court said well that's not entirely clear that you're even putting the handcuffs on him that you will stand yes he was standing there in close proximity but the charge here is empty interfered with something  the question obviously is what did he interfere with what exactly was the interference and as this court has indicated and certainly number of district court cases that i've cited in my brief the breadth very brevity of the situation which is  and perhaps even touching a policeman like me which is alleged not saying that but happen is enough to interfere then that is something that has to be wrong but you have  which i think is correct you can't resolve that but ultimately i think is the brevity of the situation interference requires that to be something has been interfered with and i don't think these facts you demonstrate as a matter of law that as your hon suggested asking an officer what's going on in simultaneously which many people do some people tend to talk a little bit by tapping somebody becomes a crime and i think that's a question that should be left for the jury and should not have been decided as a matter of  own pronouncements but certainly from the point of view of new york law which experience court may never really get to address new york will make clear that this is not obstruction of governmental ministration i mean new york court of appeals has made absolutely clear that simply a pushed and i would treat that as the functional equivalent of standing back and he sat down and everyone agrees that he never got up again he obeyed the police order to stand back with perhaps a more aggressive way of doing it but he stood back so this is not a case of a person going beyond asking a question and then obeying the order of the police officer to stand back and i would say as a matter of law we cannot say that police  this is in fact a question of obstruction of governmental ministre should have been left to the jury to to sort out what in fact is going on thank you thank you very much please the court max mccann on behalf of apple leaves there is no question of fact here about what officer o'sullivan was doing when and approached him from behind and made physical contact to be clear everyone agrees that o'sullivan was either arresting assisting in the arrest of antigens either one of those acts is sufficient to satisfy a conviction let alone probable cause and the even lower qualified immunity question for obstruction of governmental administration if there is any evidence on the facts taken most favorably to appellant that he was obstructing of course if he was obstructing there's no question but the question is what taking the facts as he says them that he came he tapped an officer on the shoulder and asked what was going on while b officer was hand better that way is vet obstructing any fat is obstructing what is a citizen who is there and looking after him allowed to do for heaven's sakes know one thing that's important to remember we don't need actual obstruction i understand you need to have a policeman finking that there is obstruction and what i'm asking is duvel police have a right to think that when somebody comes along and politely taps a member shoulder again i'm not saying that that's what happened and asks what is going on but that is obstruction because if that is what the police are allowed to think we are in a very bad way that's that's right your honor and if this occurred in a vacuum where we were perhaps being the person of i have of course right then perhaps that would not be probably because or qualified immunity but here we have a crime scene a stabbing outside of a nightclub at four am in the morning we have a scuffle between a large suspect who is actively resisting arrest and reaching for his waistband and we have officer o'sullivan who all we know all the facts most favorable to him is that he tapped on the shoulder and asked what was going on and i understand that it was a crime scene very terrible crime scenes or a bad crime scenes or whatever but a question is does a policeman in a situation like that have probable cause to think that no your honor to be to be clear it's not we have a large suspect approaching a police officer from behind and making physical contact and diverting that officers out of this it can be i do it it's not it can be careful because when you saying son is you're really saying other things as well your honor aren't you know your honor i'm saying size i'm saying that whether a suspect is physically imposing can bear on whether it's a reasonable officer would feel threatened which is one of the characteristics of obstruction of governmental administration does a better argument have to be that there is arguable probable cause that this is interfering when police officers are engaged in a  physical altercation with an arrestee who's the person to be arrested who is resisting a dangerous situation where the police officers obligation is to have the person arrested with a reasonable you support a minimal amount of force if it's a that can be employed and that things that would be noninterference in other circumstance walking up to an officer who's standing on a corner and saying what's going on with these parking regulations not a not interference but in it but lower levels of interference constitute obstruction given the surrounding circumstance absolute we have to consider the circumstances of this case and this is not ordinary every day behavior i say to that no the officers didn't specifically order antics to stand back from the arrest of staff aleutian because they didn't have time to he and we know that he rushed into the scene of this physical struggle because the video that's at two forty seven of the appendix confirms that it's grainy but it's surveillance video and a defense criminal defense witness has done us the favor of imposing circles around the suspect and you do see and to insert himself into the physical struggle with this video has to be watched before anybody can adjudicate the facts of this case it's not a polite tap on the strolled or low as if he's asking for directions and to be perfectly clear the officers did order antics to leave this corner not just the area of the nightclub we've cited a string of record sites in our brief but all specifically point the court to two twenty eight where officer giancana says that he was removing people from the corner point the courts to officer cologne i'm sorry not officer a woman cologne who is with the officers at the time she said that officers instructed them to leave the corner that's three fifty eight of the appendix so we do have this order to leave but more importantly new york cases don't require in order to stand back it yes absolutely would be a better case force if they did but new york courts do not require that in before for example people v dolan and people  division the third department affirmed convictions for o j where there were no orders to stand back you have just threatening of approach of a police officer from behind and people be tarver and people dolan you have sending marked police cars to have a proper well that's enough right and that's enough for a conviction your honor but more importantly it's the absence of authority on point that shows that an arrest under these circumstances is unlawful that confirms the appropriateness of qualified immunity here it's not enough to simply distinguish existing case law and say well this isn't that case which by the way i don't think you can even do neatly especially with husband's fe city of new york where somebody just arrest approached the arrest of another person and was arrested and qualified immunity was applied there by the district court correctly here the policy rationale for qualified immunity is really at its apex when you consider deprive qualified immunity existing authority must place the unlawfulness of the arrest beyond debate the fact that we're sitting here having this conversation itself proves that qualified immunity is appropriate because it's not fair to hold police officers liable for money damages where lawyers or judges or constitutional scholars can debate the merits of this argument these officers are making split second decisions in a tense situation applying very difficult legal authority menacing he was actually threatening the officer that charge disappears so this was not a split second decision as to whether all of us should or should not arrest him they thought this through there were lots of police reports in terms of whether he tried to grab him whether trying to hit him with or try to threaten  if this was not police officers having to make a split second decision they took him into custody but they could have then decided not to charge him with many a scene and indeed this testimony from one of the officers that he didn't want to charge with menacing but that courts have the case cited by by pelly husband's case the officers told this person to stand back and they weren't standing back i mean there's no case in the situation and i won't say this is unique situation because i think it's not unique police officers unfortunately deal with situations of bystanders trying to intervene with the rest of this is not an uncommon kind of situation and i think what the new york court has made clear is there has to be some sort of obstruction physical web struction of what the officers are doing and what we have here there's nothing physical tapping someone on the shoulder is not a physical obstruction or at least it's a question of fact that's and this is not a situation where the in a police officer he's making an arrest of someone who is resisting arrest and someone behind him taps some on the shoulder even a light tap on the shoulder when he's devoting his energies and his concentration to trying to arrest somebody who is resisting and is posing a menace to him i'm not sure it's a reasonable i wouldn't as something that's interfering with his doing the job that he's trying to do i  agree except they wouldn't accept the premise that you you presented this record shows as the district court says we don't know what o'sullivan was doing your question assumes that he was physically in there trying to handcuff him and fact the record doesn't show that at all and indeed man and someone else taps him on the shoulder according to the conclusion that the district court reached the only thing we know is he was there does it matter whether he was trying to handcuff him or not i mean if he's saying you have three officers who are trying to arrest a person who's violently and i'm departing from the record here i just i let me resisting and they're trying to overpower this person and get handcuffs on him and one of them is essentially standing there ready to assist if if his efforts are needed ok well we don't know we don't interfere if a bystander comes up and says excuse me sir can i ask you a question can you say as a matter of the question is as a matter of law under new york or as an interference i would say no it's not did not as a matter of law particularly in this situation is that we don't know what the seller was doing other than the fact that he was there because what was interesting is that his brother officer says he wasn't doing the things that you were suggesting that he was you know he was an officer standing there  and i think what's critical here is the brevity i mean this lasted maybe a second or two i mean to say as a matter of law that this one a two second interaction is as a matter of log you probable cause when the person did nothing other than politely ask a question tap him on the shoulder when told to stand back and pushed back with basically told to stand back obeys i would say that does not create as a matter of law you will probable cause to arrest