thank you your honor it's the may it please the court i'm greg ganske lino and i'm here with my co counsel ten yelena now and we both conducted the second trial in this case although we did not we were not involved in either the first trial or to speak to the police could be a factor in determining probable cause but in the second term the city had a different theory and like you to respond to that that there was a pilot of the park rules they never brought that up in the first case that's true now if that's not a violation of the mandate really i'm not sure if it is we pointed out that this rule and we're assuming their interpretation of the rule we gave two interpretations first this is nonsense that you can't have a kid you can't come into the park without a kid when there are dealt elements of the park we were dropping down to their level didn't challenge the no where were we well at that point we were into the case for so many years we were going to be able to amend the complaint i think it should have been initially but here we are at the second appeal and their argument is that no adult can enter a multi use park without having someone who is twelve years or under that's the rule that's post that is the rule that's posted although it's confusing because the jury did say that the sign says both area and area was no we're not arguing that what we're arguing is that what we're arguing is this that this is simply  unenforceable rule based on their interpretation of two point four and it is two point four not three point six a two point four acre park is too large of a space in which a police officer can determine just by looking at someone whether they have a twelve year old in the park and as both for your theory to follow you argue that he  there well we did our knew we had he had children there but we're assuming we are assuming their facts of the case for the purpose of rule fifty and what the police officer knew at the time that she made the decision to arrest him and she said simply that he was looking down he didn't have diapers he didn't have a stroller and not every parent who probably knows that and we pointed that out to the jury and to the judge and in order to enforce this law as they accept it's intraparty tension that you can have a kid on this corner and it and adult on the other kitty corner the only way to enforce it is to get the defendant to admit that he has no children or to bring the him but that didn't happen in this case what happened was instead of moving on as you say oco allows a suspect to do moving on and accepting the plaintiff's right not to speak to the police they took his cello and humanise to get into the garbage and that's going to any reasonable circumstance and anyone under any reasonable circumstance where the police officer does something like that can make a pronouncement as a matter of law have but that was me not understanding your argument the argument is that what they would do what went wrong with a trial on the facts we're not arguing facts we're arguing law although well we do argue that the immigration evidence you had was while right if we had a trial before a jury before a jury and we're here reviewing a jury's determination based on the charge to the conjecture character and not tell me the facts there were simply that he was looking down and eating cello and then finally what they were peevishly asserted was that he didn't answer the question it could have been a dollar it could have been two hundred thousand dollars but proximate cause applies to whether the person who is found for at the first stage of the trial plus the harm so proximate clause in a strict liability case in a strict liability proceeding has no function in the only case that they point out was a case  decided just wesley involving multiple tour fees or where in where it was a new question of law and the court held you had to decide that question on minutes you will hear from the city of new york the first misuse you testified of one that he had children that were coming to visit him and his allegation was that the children were playing while he was beaten badly by police officers and then and then hauled off to jail was children were stranded in the playground that was his testimony in both trials what the city did not argue to the jury there was that that was interesting that to be in the park without children was an arrestable offense the city isn't the first in the first  became one of the court i believe at the and of that trial i believe may be ready for summations and counsel can correct me if i'm wrong that that that in fact it can be a class b misdemeanor and therefore as an arrestable defense so with that case law from the new york court of appeals on the second trial the city did argue three bases for the arrest the first which we've been discussing is being in the park without children i think i just want to emphasize one point there the officers saw mr music who without what we're calling kiddie stuff strollers they saw him not you know right by the swing sets of this this question of whether he's in an area where you need children is really really important about the interaction here is if if i'm in a park with kids under twelve and i'm there caretaker their parents and i'm not actively attending to them and i'm looking down in a book or jell o or whatever but i'm not actively kids are ok we're not going to just ignore someone saying you have kids with you my kids could have run off my kids could have fallen there there might be a fight there something the fact that someone's there without any indication of children and shows no concern does not even is that he was minding his own business and whatever he did was provoked by this aggressive behavior on the part of the police your honor literally was minding his own business your honor i think that what's important is their points to recognize their first one and only one offense under these circumstances there is probable cause to arrest him for being there without children and also to arrest him for not for not responding but for not obeying their direct order that he leave once they had reason to believe he was there without children with respect to disorderly conduct i think that if you look at the town's decision which is one seventy six f thirty one thirty eight and also this court's holding in pincer which the court holds  entrapment is not a defense in a false arrest case i think that what those cases stand for is the proposition that even if somebody is upset by what a police officer has done if what they're doing is yelling obscenities in a crowded playgrounds and those meets that conduct causes small children to gather and it meets the elements of the statute under new york law these questions of first intimate offenses are relevant in a criminal  provocation by the police hoof who saw him sitting there a black man eating jello literally minding his own business and they start asking him questions and eventually provoke him to the point where he's arrested for disorderly conduct it could happen to any of us although it doesn't usually happen to white women over certain age but i understand that how he feels your honor i believe that this case is very different if he's not minding his own business in a playground right by the swing set and i think that the city does have an interest in making sure that there are not people from any backgrounds in what's really an area for there was a sergeant who was not named as a party who actually ordered the arrest and the question it and the evidence shows it you know one of the officers for instance took the jell of the other did not one of the officers of the questioning entered not with respect to each defendant did that defendant's conduct because you actually false arrest and because that's a question that is relevant to liability that was a proper charge for the jury i just want to speak briefly to what my colleague has deemed immigration evidence which really was simply evidence from a custodian of records as to whether mr music use children were in new york city or not on the day of the incident misters you testif length as i noted that in his kids were in the playground of the time that he was beaten while they were there and he was then hauled off to jail while his kids were stranded in the playground these are very very concerning allegations and the police officers did not believe them to be true that they did not believe that he had children or that they firmly believe that and they were entitled as defendants in this matter to present evidence showing mr hughes you  testimony to be false i think it probably would have been a reversible error for the court not to allow the custodian of records to present that evidence as the district court properly explained enough new immigration status and it's  plaintiffs who saying that this is somehow suggesting a legal entry the city's theory is and always has been the children did not enter the country at all and that's why this evidence is relevant and should have come in and therefore they could not have it's a crime is a crime and there is no exception if the clock crime involves children adults or both they all stirred their argument to provoke mr zucker into speaking by this picture which is the twelve sixty seven of the record in which shows that the bench that he sat at was in the bench area not at i am making is that now that we have conceded that it applies to the entire park they're trying to say that it applies to specific ports of the park all right and our point is we'll agree with you that you can't have a kid you can't come in without a kid somewhere in the park but if that's true you've got to have a park and what they did was they used his failure to answer their questions to him any normal person would answer our questions mr zucker who as it happened when the first time that's right he has a right not to speak he did not have to look up to the police officers and having provoked him into the rage that they claim he said he did on the park is number one identical to people against baker in the second circuit in the court of appeals of new york which described probable cause the circumstances in that case involved police officers with people all around and this is the same thing the court of appeals tells were no probable cause the order to leave the park