and next matter on our calendar is larry thompson verses several police officers criminal charges is not a favorite nation of the criminal proceeding under federal common an authority under federal law and common law tort principles nd the district court erred in instructing the jury on unlawful entry both because it assigned mr thompson the burden of proving the non existence of any exit exit in c and because defendants did not produce any evidence of an imminent danger they would have prevented them from calling in a warrant while mr thompson was standing with them and indeed thought with the exception of that he was bound by this court to reach that insane result and i think this goes to the test i was about to articulate which i think is recognized through decades of this court case law and it will directly confront lanning which is obviously the court the judge weinstein felt confronted by if i may proceed on that so the test we think is reflected by this court case law and by the common law is that when a defendant defend against charges to the point of dismissal common law used the language formal abandonment of proceedings it is a favorable terminations of the criminal proceeding unless it was in exchange for consideration from the defendant in the form of a plea some sort of compromise where request for mercy or it was caused by the defendant through fleeing or some contest that that is the principle under common law nowhere if you look at their entire section of their brief that is unfair alternation they never once mention the phrase common law ok and everybody agrees that's the inquiry under supreme court case rely on common law tort principles and let me just read the restatement as i think it is very clear it's a restatement six hundred and fifty nine c says criminal proceedings are terminated in favor of the accused by the formal abandonment of proceedings by the public prosecutor so that's misconduct by the defendant and those are quotes from the restatement compromise is the word used misconduct is the word used and see mercy that was what was at issue at lanning ok if you look at the sentence and there are two labels used there's affirmative indications of innocence is the language the artful language of common law which is represented by the restatement and letting says this we're getting that and then there's this what the label used is inconsistent with innocence is how they have the landing court kind of labeled with the new york appeals position was but what that label was in lending itself was taking the provision i just read to you six hundred and sixty dollars which lists compromise misconduct and mercy and crossing out the mercy exception if you look at what landing was saying the very sentance that the defense relying on says the problem is that the new york or court of appeals quote deviated from the restatement by holding that an interest of justice dismissal is a favorable terminations and what they effectively did was cross out that line of the restatement and what the lending court said was no no no we apply the common law federal we pipe federal law for this question which tells us to look under man well the court cited manwell the supreme court's decision which tells us to look at the common law so we don't think that lanning as defendants would say intended to depart from and totally overhaul the common law and i think it worked there right because didn't actually cross the word mercy court had done that two decades earlier and i said that under the specific new york vision scheme for interest of justice dismissals that that is not a favorable terms and we don't contest that even deeper than that it wasn't that what this was this was the interest of justice well so your honor that's a separate point so i do think defendants make a point that you can say so our view of the case just be very prosecutor in this case said i want to dismiss all of these dredges in the interests of justice now let me tell you if i was writing on a clean slate i would say when the prosecutor says it's in the interest of justice that this man not be prosecuted anymore that sounds like about as favorable a disposition as you can get but but our president say it's not l remember the record here is that because the judge in this case did not comply with the requirements for interest and justice is missile because the judge didn't say why it was in the interest of st we think that on this record it's not just that the judge to make specific findings it couldn't have been there was no motion for it to take place under that ruling that the actual history here remember is that mr thompson's offered an a c d that's pretty much the best thing one of the best things you can be offer right that goes away it's sealed he says no even though everything would go away defense council then moves because this is not legal to go away and then it wouldn't go away he'd be on probation for a year and if he screwed up the charge comes back it's a much better  position to get a dismissal outright in the interest of justice well so so so let me say this off the bat if the court thinks there's some sort of factual dispute whether i don't think there's a fact i know what happened the question is as a matter of law when the prosecutor gets up and says i want to dismissal in the interests of justice here and the judge says ok dismissed without going through a statement of approving what the prosecutor did the way new york wants the judge to do that's cases that make very clear judges have to make these findings there has to be a motion there's a specific procedure and if you look what was actually said it follows from the conversation that was just had you remember this is the stand in prosecutor's not even the person who had the conversation right so conversations happened with the actual assigned line prosecutor and the conversation based on the evidence of the record in the record here from defense counsel is that there was a legal problem with this what you're basically asserting in your in your information that's what is that lawyer argued that's what the defense lawyer legal problem here prosecution says we're dismissing charges hearing two defense counsel sense of what's on the record says the people have agreed to dismiss the case that sentence does not make sense if this is an interest of justice dismissal because there has to be a motion then is interrupted the defense lawyer ever say in her testimony after that meeting i knew we had an agreement that they were going to dismiss because they agreed with my argument while she said that yes i mean that's what she represents in court she stands up and says she's  and the prosecutor ok whatever i agree all this misses in the interest of justice and comes into court and that's what he asked for that were supposed to infer that what he was doing when he was doing something else well i think the point your hon is that you can't agree to that i mean the specific provisions that there has to be a motion a judge has to consider ten factors and write the specified reasons we think that at the very least creates a factual issue and i think we think actually it's pretty clear this was not an interest of justice remember interest of justice is a common phrase it's used thousands of times in the new york code it's used in one hundred and fifty different provisions of the criminal law section on not referring to this special scheme that's very rare under new york case law so the idea that we can just presume that the prosecutor because the prosecutor attached that to the end of their consent i mean the vast majority of dismissals that take place in this fashion are just moved coming into court under the prosecutor's consent which is what defense feels that they agree prosecutor says we agree to dismiss the charges in the interest of us as we agree is a consent dismissal i think that's the vast majority of dismissals i thought they weren't supposed to consent that's why you have this intrusive justice provision no your honor there's an express provision we cite in your reply brief defendants acknowledge it they can majority of dismissals are prosecutor standing up in court saying we agree to dismiss the charges or a c d s this is a very rare reckon assume that defendants are asking i want to be clear i agree with you that if you can conclude as a matter of fact  adds this generic language i mean this certainly was in furtherance of justice but it was not under the special i scheme for it and there's nothing in the record that indicates that special and so and you're characterizing this as an issue of fact or as an issue a question of law there's a question of fact as to what actual mechanism was to it was used here under new york law that's a question of fact for the purposes of then answering the legal question of whether there was a favorable terminations oh isn't there a legal there isn't a legal question as to what new york were kind of disposition this was under new york law i mean i think for the purposes of of the favorable terminations we need to figure out what in fact i mean don't you want it to be a question of law because if it's a question of law we should be as good at figuring out what new york law is as judge weinstein was if it's a question of fact then if he found that this is what it was then it's standard of review so i don't think so it's not certainly not a question of fact that a judge can decide actually favorable turn is frequently submitted to the jury i believe you know if you know favorable terminations was this a dismissal under this particular provision of new york law we know the facts which i think essential just because they're on the transcript of what was said we know what the defense lawyer said in her testimony and no one disputes that that was credible so we have an account of the events and the question that you're raising i think is does this amount to an interest of justice under new york law dismissal and if it was then the next question of law is decided  not an interest of justice to missile under the specific scheme that was at issue and landing at high i mean there was no motion under that scheme this the language used was this is a consent dismissal under the new york commission jailhouse consent dismissals and the only thing there is is this phrase interest morning morning may it please the court kevin us house on behalf of the individual defend an appellate east mr thompson asks this court to revise or abandon its clear precedent that one affirmative indication of innocence is required to fish sufficiently plead whether the what the what the standard what the requirement is for a plaintiff and landing it's it's it's actually that there's an affirmative indication of innocence suppose the prosecutor just comes in and says we don't want to do this and eighty three dollars malicious prosecution claim he's required to prove something more and actually show affirmative indication of his innocence with respect to whether the when a claim has been withdrawn or abandoned pursuant to a compromise with the with the accused this court is as previously held and this is clearly not a compromise right this is not in a cd but this isn't any kind of compromise the defendant is giving nothing in exchange for this dismiss this so the the mr thompson's argument is that this case was not dismissed in the interest of justice the only other alternative is that this case was withdrawn and this court has said that a withdrawal is not sufficient to  how the affirmative indications of innocence in the circumstances don't matter that is to say we don't look at all anything in the record that might give us a clue as to why the prosecutor would walk away from a case well here the court actually did the court held a hearing to see whether there was an affirmative indications of innocence and all of the evidence that was produced during that hearing at which mr thompson bore the burden of proof did not support indications of innocence so well certainly the defense lawyer thought there were lots of indications of innocence and that she made a pitch to the prosecutor on exactly that ground well that actually the defense lawyer when she testified at the at the hearing thompson's federal case said that she she wasn't sure what she what she said to the prosecutor that she couldn't remember and she testified that the criminal transcript does not include indications of innocence so she should herself was admitting that transcripts of transcripts and showing it and not a myth that's just a fact the transcript says nothing about innocence or why the prosecutor is walking away or act and but mr thompson also had no he didn't didn't meet his burden of proof with respect to demonstrating that that the that his case was dismissed in a way that indicated that he was affirmatively innocence is there anything at all in the record with respect to any mitigating circumstances or things about mr thompson that would lead a prosecutor to think well even if i have a decent case that he is  claim and there i think there's abundant evidence to demonstrate that mr thompson had a structure of governmental ministration in fact the jury when it when it tangled with the question of whether mr thompson's arrest was proper or not found that there was evidence to support and that that mr thompson had not been falsely arrested and put words in your mouth but let me try it this way is this sort of an argument that if the reason why the prosecutor dismissed the case was that sadly this was all a mistake in the st place that he hadn't done anything wrong he was the victim of a crazy person calling the cops on him for no reason a nd therefore even if he obstructed the police in their legitimate inquiry into what they thought was a child abuse case there is reason to forgive him for his direction of the police or his resisting arrest or even from punching somebody or whatever might have occurred whether or not it did occur whether or not he is guilty we're kind of the blame in the st place so we're going to walk away that would determination in favor of the accused only happens when that final disposition indicates that the defendant was not guilty and not a not where there's open to a question of whether the defendant was guilty or not i also want to briefly was there was exigency i think it's also instructed to look at the the court's instructions to the jury with respect to this case and with mr judge weinstein's instructions to the jury were that if they find that is unreasonable under the circumstances for a defendant officer to believe that there was an urgent need to prevent ongoing harm to the child or provide immediate aid to the child then the defendant's entry was lawful and you must find for the defendant so that was how the jury was instructed there as a last point i see that my time is almost up in any event the the court was pro was proper in dismissing mr thompson's malicious prosecution claim because mr thompson failed to show a lack of probable cause as required by this court in mitchell versus city of new york from two thousand and sixteen and all the testimony that was presented to the jury led them to co the entry here was justified and so there was and they rejected the false false arrest claim indicative of that and in light of this there was ample proper there was ample probable cause for an officer to believe that thompson had obstructed governmental m the ordinary thing let me go right to landings i think it's important in landing the court specifically said when it was adopting this common law phrase that it this court's current decision says some page twenty five that current decisions will continue to govern it clearly did not assume it was overruling prior decisions let me start listing the number of this court's prior decisions that would be overruled by this position spec spac was a case involving a null prosecution basically a consent dismissal that doesn't have to go to court the court to inspect actually expressly rejected this interpretation of affirmative indications of innocence responders don't even address that once in their murphy and poser these are cases that in view involve speedy trial violations or failure to prosecute them because it seems to me that manning is saying that interests of justice dismissal doesn't count when a speedy trial dismissal i always thought that what new york prosecutors did was let the clock run when they thought the guy was innocent and then they'd have a dismissal on speedy trial grounds because they didn't want to say the guy was innocent because they were hoping that that might insulate everybody from any kind of liability there's a lot of there's a lot of justice dismissal if you think this is under that new york special asking we think you're wrong about that if that's what the court concludes then then this was not a favorable terminations but if this was an outright dismissal meaning if it was not an interest of justice dismiss landing for the definition of what is an affirmative indication of innocence it rules out a few types of formal abandonments ok one is when there's a compromise a plea one is the defendant misconduct and rd is mercy ok that's the interest of justice  that we agree that under the common law under the federal law if you proceed under the new york provision that is not a favorable terminations ok what we're saying is that didn't happen here there's no evidence in the record except for me except for a unilateral statement by the prosecutor this can't be a unilateral thing but there's nothing on the record other than a general statement that he was doing this in the interest of justice he was agreeing under the provision i started with in my rebuttal to the dismissal and that specifically deals with this are you remember spac was a formal event in a proceedings in the form of a connecticut no prosecution in just deciding not to go forward but there's no court involvement and that actually just really encouraged the court to read the comments again this is the exact pro proceedings for example a motion to dismiss the complaint for so so any formal abandonment except for those ones that i listed in six hundred and sixty one dollars of which is mercy no the the reason i'm not saying your court appeals is the right way to go is because the new york court of appeals has held th what innocence means so i think that's an accurate description of my my my friend describes it as factual innocence when the prosecutor stands up in court yes to make some sort of statement saying i'm dismissing this because i believe the guy's innocent that doesn't happen and so what i think judge weinstein recognizes that you what you'd be saying is defendants have to stand up in court and the actual exact argument that was made by defense counsel below to stand up in court to contest the dismissal expose yourself to criminal liability in order to argue that you get to a favorable terminations and let me just say it's more with the prosecutor put on the record that my client is innocent of these charges that's what the issue is joined right and if the judge says no you're out of luck or if if don't know the judge grants the motion anyway because the prosecutor is walking away or doing or saying it's a right interest of justice or whatever the prosecutor says the judge looks you gave the example of kind of sadly we're dismissing this case it could be not just that it could be retaliation for exercising your constitutional rights as we think here could be a racially motivated charges and you're saying you pursue this to the point of outright dismissal and because they don't have an outright dismissal pursuant to what we said is required to prevail in contest anything the question is what the prosecutor does and the prosecutor here is making a particular kind of motion maybe it's defective i don't know under new york law but the prosecutor gives a reason and the defendant you know if the defendant had gotten up and said asking that this be dismissed because you can't have obstruction of government administration in your own house which strikes me as a very dubious proposition of law and the prosecutor said yeah right we consent that would be one kind of dismissal and if that was wrong as a matter of new york law it wouldn't matter the prosecutor agreed to dismissal on that basis which would be a favorable terminations and doesn't matter with what the judge thinks and the judge's head of the judge thinks well that's a pretty dumb but the prosecutor consents so fine then it's granted on the basis that was offered to the court and consented to by the prosecutor but here the prosecutor is saying this is a dismissal in the interests of justice that's the reason i'm giving without saying why it's in the interests of justice we have no proof at all that he ever did anything to the police officers when they came through the door could be because it's a closed case and after all the officers were inadvertently to blame it's understandable why the guy was upset since he hadn't done anything wrong before that would lead the police to be at his door so we could be a lot of reasons why that dismissal other than the man is innocent of obstructing administration so your honor i don't like is that i don't disagree with you if you conclude that it was under that scheme we think on this record you can't reach that conclusion because there's no indication excited from that generic statement interest of justice that this actually took place under that scheme we think that the evidence on this record is that this was dismissed because there was a legal problem with the charge and i do think you have to look at it from the perspective of the plaintiffs plaintiffs who believe he was unreasonably steve put his life up ended here i mean mr thompson lived in this apartment nearly as whole life he was looked at as the peacemaker nickname was pumpkin he was thrown in jail false arrest is certainly cannot be and here for two reasons i mean the standard is different right the probably cause of the officers on the scene versus bringing charges but also there were other bases at the time for the jury to find probable cause there are two extra types of that they allege probable cause that mr jones mr thompson was never actually been charged with so that's completely irrelevant the fact that the jury might have found probable cause on completely different crimes in a completely different threshold for probable cause but  my point here is that mr jones wanted to sue because he believed he was wronged in the idea and that he was in fact having retaliation for just exercising his constitutional right at his door and in other cases it might be racially motivated it might be retaliation for other types of constitutional rights leave that their rights were violated then that's why they bring suit and they may very reasonably believe that the question is whether the elements of a claim  made right he may have believed that he was singled out for reasons for example if that was his believe it would be understandable why he was very upset by this but it and he may have even made some argument that i shouldn't be prosecuted because  racially motivated but if the prosecutor says i'm dismissing this for some other reason and that's why the court dismisses it not because it was a malicious prosecution from the  start like a racially motivated prosecution not because there was no probable cause to believe in the offense that was presented but because the prosecutor makes a certain kind of decision a resource decision  whatever else and makes that motion and it's granted all you're really saying is when you say it wasn't under this rubric well that's the only rubric that's offered and if it is defective as a reason that doesn't defeat the fact that the dismissal was sought and granted on a particular basis i think that the submission i'll leave you with is that that's not the rubric what that was offered he said i agree to the dismissal of the people said the prosecution of agreed to dismissal that's a thirty point four dismissal that dismissal that happens every day and if if the result is that a prosecutor merely standing up and saying the words interests of justice extinguishes these claims and again i'm not fighting lending i think that's right that ultimate conclusion of one is right but if that's what converts it into the specialized scheme that nobody in that courtroom i think any of the public prosecutor the prosecutor wasn't called here i don't think the prosecutor even say that frankly based on new york practice that this was the special scheme interest of justice dismissal but if that's the threshold i think all of these claims go away and that's why i'm saying to look at it from the perspective the plaintiff as well who has to be like who you can't put all of the weight in these few words the prosecutor says what doesn't matter is why the court did it and i think if you look at this record if you look at the conversation that was how the prosecutor if you look at the fact that prosecutors can dismiss merely on their stipulation with consent and that falls clearly under the common law as a favorable terminations the language here is that people are agreeing to dismiss