case and the lack of any prior conviction convictions under either statute well the politics in this case are relevant you know you want to because the war had never been tried before in the convictions were new the law had never been tried to apply in this way judge kathleen rice mentioned at the get go and i was always admitted this was a new application of the law she said so in her deposition with me j a five eighty four well not only was it a new application of the law it was also different as had been before for seventeen years in the state of new york well she had to have a probable cause is going to be measured at the time the right reason was probable cause or there wasn't probable cause the either was or you will probably cool well there was not and it doesn't matter what the politics were well your honor in this case we believe that there was also press releases that were going out describing my clients as having committed being dealers in death and things like that not self clear but i'll stop on the mouse issue you want to we believe that these are relevant relevant subjects one of the areas of law in the court below below was reliance on four hundred point zero zero twelve it does not apply to rifles the court mistakenly applied a handgun section two rifles the statute describes exempt persons exempt persons are handguns carried on the head of him controlling on a new question of law the more you argue that this is a law that is rarely if ever applied the easier it becomes for the side argue least qualified know we believe that qualified immunity or under the theory that was proposed requires some probable cause not zero probable cause and here if you look at the affidavit in support of the arrest warrant it's only legal conclusions these were stories that have been operating war for for seventeen years with with advice from the state in albany that their conduct was waffle and that we're going about their business that found themselves being videotaped and they're arrested so when the court indicates th five twenty two a change the four hundred statute could not be valid it does not apply to rifles but the four hundred twenty two a if we were believing that the police could be reasonable in modifying what  on which four hundred twelve applies only to rifles what language are you referring to the term firearm and firearms as defined in the statute somewhere to mean only rifles yes penal law section four hundred is a but this is this if you look at the e mail related to bennett bennett describes trying to apply this statute in this new way and that was the e mail quote the question e mail that went to a warrant so they really were not sure of the law when they brought this case so how reasonable can it be to rely upon someone who is hardly a neutral but on the issue that could have been argued to have reasonable probable cause which is to sixty five point zero zero twenty two a or d is it reasonable to believe that household tools or readily reversible by haskell tools is going to be an objective standard your honour's what tools what tools are in my house what tools are in your house the objective standard there would be something measurable and did the police act like was removing the gun to do you know that you could just pull the pin out as opposed to struggling with the video with the vice and let the tools but we don't believe it can be even arguable reasonable to go through a sham of a video which perhaps the court saw when the thing just pulls apart very very that they were trying to create a standard of easily reversible couldn't withstand any kind of testing scrutiny and it was easily reversed if you just had a poll and you didn't even need any household tools than what's what you are human about their household tools and indeed it really should indicate that the weapon was sold in a way that me even had been designed to be easily converted into a missile well your honor we know that the police after the say fact passed gave guidance to gun owners if they don't want to register their guns to change the barrels or change the hand grips which is exactly what they did so the state police did not think it was illegal to make modifications to the guns also lieutenant sherman testified that in essence lieutenant sherman testified against what they going to arrest a geisha and it was doing so nobody believed that this particular gun which is still sold in new york today but very funny looking very passionate lieutenant whoever he was didn't think that doesn't mean the gun unit could not reasonably have thought well they knew they were changing the war your honor and we don't think it was reasonable to believe that household tools could be a standard to convict someone on under the state with use well we only know one or particularized it looks like he good morning your honour's may please the court for the state police defendants i'll start by answering judge kaplan's question to my colleague mr florida the definition of firearm is into sixty five point zero zero three firearm means and an assault weapon and that definition applies to the licensing statutes and part four hundred mr sense of euro indisputably sold an illegal assault weapon no modifications or or ease of reversibility  indisputably there helps to conceal the shooters position so what was on the barrel was removed to expose the through it was a muzzle break a different kind of attachment that isn't on the list that the flash suppressor isn't it something else but in this threads exist to put on the flash that's right had the weapon been sold with nothing on the tip it would have been indisputably illegal and it didn't lose that indisputable illegality simply through that it take to remove what was on the tip the video of the process is in the record it was just a ranch investigator frank used a ranch and screwed it off so it's as if the threaded barrel had never left it could have had a piece of tape over it or thimble it's the same  threads would have accommodated not only a flash suppressor and a muzzle break but that's not in the record and i'm actually not sure of that answer judge kaplan but we do have it unrebutted evidence that the threats were capable of accepting a flash suppressor the weapon was test fired after that a couple of months on it and it operated properly so this was a fully functioning and illegal weapon the second characteristic that the folly collapsible stock you had a pen had to be removed and you have to bang that weapon on the grounds to remove the pen well that would have been a third bend characteristic the statute only requires two so we're primarily relying in this appeal on the protruding grip and the  threaded barrel but there was a third bank characteristic that was exposed by investigator franks knocking the weapon against the ground a couple of times and using a pair of pliers it took about four and a half minutes so in fact there were three bend characteristics but you only need to conclusion that conclusion makes particular sense given mr sense of you're his primary defense that he raises in his brief that there is an exemption in the statute for dealers of firearms that applies that bars liability for this particular sale by a  firearms dealer now there are some ambiguity in the law the exemption accepts assault weapons but there's a separate definition in that sense we were talking about just before that includes assault weapons in the definition of dealer of firearms duty would lose support qualified immunity it would in it's especially appropriate qualified immunity is especially appropriate when dealing with potentially unsettled questions of state law that could reasonably go either way the federal rate that this court would hold  purposes of the doctrine we want police and prosecutors to energetically enforce our laws banning assault weapons these are dangerous weapons as long as what they're doing is careful and their reading of the statute is facially valid they can't be held liable in money damages i'll talk briefly about the fabrication of evidence a claim which is sort of baked into the malicious prosecution there is no sham here there is no fabrication everything that investigator frank did was above board a relayed in that video that's in the record and that the grand jury saw in the related presentation is it possible to fabricate evidence you know with it is not concealed you just exactly what you were doing that you might lose on the merits if the grand jury thinks that those modifications were too extreme or that the weapon wasn't sold in a state that would make it an illegal weapon under the law but you haven't you are not fans are getting evidence of what you do is not designed to deceive facts like that's right judge jacobs you are simply offering evidence and showing your work and if this court has no other questions i thank you district attorney rice and her activity was classic prosecutorial conduct where she a value where the evidence presented by the state is that forty page  the chief investigator frank where he says what happened and that this was an illegal sale she digested that with her deputies and determined to impanel a grand jury there was a grand jury impaneled but as far as quite frankly da rice who is now congresswoman rice don't want to have you as a strong advocate regarding weapons especially conceal west weapons and especially assault weapons this thing was being debated and still being debated particular case you're dealing with a weapon which is quite frankly easily converted if you look at that video it's a wonderful video and besides this affidavit of forty pages and all it shows that rifle and this is the state any action i an elected executive branch person or persons employed or or appointed by that person could be characterized in one degree or another as political no doubt about it your own and if political content to a decision by such a person was relevant to the issue of qualified immunity we defectively abrogate the doctrine it could yes in very broad yes range of applications in the right yes i agree with you don't g after sale by sawing the barrel too short or by making it fully automatic all the things discussed in the staples the us case but that will never make intent at the time of sale my client had intent to follow the war had the a t f in their regular away had read police shopping there regularly and was always found to be in full compliance as with the other stores i don't bring them into this but we asked everyone involved in this case a prosecutor decides that there is and there isn't a public need reasons the judge kaplan pointed out it's really very difficult to say that the something wrong with a prosecution that is designed to implement a policy and political goals but there were these curious factually like omitting the word intent from the penal law to sixty five charge we asked three sick oregon why she made it the word intent intent is an element of the disposition of a firearm she didn't know we saw it in the draft version properly done but in the version that went to the grand they emitted the word intent and that would satisfy the staples problem of modifying the gun after sale sensor vero had no intent to sell anything illegal he's a retired police officer he would none of these stories you know you would be  any retired police officer is incapable of criminal behavior there's been no reason to sell it over the counter jerseys the stores operating in the light of day there was no reason to videotape them there was no reason for no reason for all of the shell they could have gone any day picked one off the shelf and said that was illegal but they had to create the probable cause by modifying the gun after sale and them and the reasonableness has to be measured at the time of the investigation beginning or end it will not sell when it was sold it was happen the people that stopped this from going forward really by not supporting the changes she was trying to make but i just want to add we asked all of the prosecutors and police frank knew about staples he was involved in the first e mail that went to can control if you if there's an exemption for gun stores we never heard how they got around it we asked them how how could you get around it they're exempt you could saw the barrel off and it would still be legal fourteen to possess because their dealers and firearms we never got an answer this was one of the unresolved fact questions below i just will we will reserve decision at this time