well we're here pinto versus the city of new york morning when he made his the court for appellant carlene pinto we asked just like make sure every serve the two minutes forgot all we asked this court vacate judge man's decision granting summary judgment based the false arrest claim won't stand and it seems to be conceded that she was off the sidewalk at more than one point and so i think you have some trouble there but with the malicious prosecution case i think you may have a chance to defeat summary judgment because  think that there are genuine dispute as to material facts with respect to what the instruction was to ms paint over to the demonstrators and whether or not she complied with the instruction but i'm wondering if you agree with me and you you'll tell me why of course there are i do agree with you i believe that the district court decided in contravention of postmen tud and other cases that based on probable cause for an uncharged violation that she dismissed and i think it pelleas agree in error that the malicious prosecution in fabrication of evidence claims although there is no finding us a probable cause for the two charge violations and in this case in fact x conceded that there was no order to disperse and that's in the will fifty six one statement but additionally ms pinto other protesters present and other officers including the ah officer sergeant william liang who was standing directly in front of miss pinto and instructing her to step back onto the sidewalk stated that the only order issued at the time was in order to in fact step back on the sidewalk and that she complied sergeant diaz and additionally that she only otherwise stepped off the the curb when the volume of the two hundred and three hundred protesters displaced her momentarily and that whenever the police issued an instruction she continued actually because she thought she evaded the question by saying we crossed a lot of intersections and the next question was well on what about not intersections just sort of moving along the process of the march were the times you were on the street yes that's correct entered so it's not just an intersection as you said that is correct your honor we can see that miss pinto did in fact step into the streets more than once it's more than once however required under both the disorderly conduct statute to she must have obstructed actual vehicular traffic although whereas particular traffic in the police had had cars going you could see it in the in the forty eight street it talks about twelve fifty seven street in which fifty sixty that is correct your honor and that is a very important point the location of where this offending conduct took place is an act in fact an element of all of the crimes that were charged avenue the shoulder lane of twelve avenue and it's marked with white lines which are visible in the record and briefly standing having stepped perpendicular to the curb for mere seconds apple leaves sergeant diaz can see that he never saw her feet that she was step one foot off the curb was one foot from the curb and immediately stepped back within seconds importantly under disorderly conduct you must have an intent to hospital arms linked arms were not linked until she returned to the sidewalk and that is an  actually and a police briefing they they allege that the video shows that she walked in the street with their arms linked and it does not she only linked arms with the protesters next to her after returning to the sidewalk and again was only briefly stepping foot in the shoulder lane in the middle of the street your you or you were blocking traffic with the traffic is light or heavy or whether it's police cars were just there any evidence on the record that you was walking in the street there's absolutely no evidence he has walked in the middle  elements of the of v h d l violation eleven fifty six and the two elements of that violation are that there has to be a walking along and that the sidewalks have to be able to be used with safety and in not establishing that either of those elements were met she expanded the law so broad broadly that it was in contravention of shuttlesworth and in and co lander it rendered the interpretation of the statute unconstitutional as applied to miss pinto and so it is very necessary that mcmahon or the court determine whether or not miss pinto in fact walked along the street at the road bed where the the sidewalk could be used for safety and in fact the lower court judge mcmahon found that the video does not show played to walking along the road but at any time and that's at special appendix page three so although the court found that she had not there was no evidence apart from sergeant diaz's own testimony to establish the elements of this violation she nonetheless found that there was no genuine dispute or fact and and hurt her words again were that the differences in the record constituted minor discrepancies and that's again an impermissible weighing dispute as to what the officers actually in iraq did the protesters to do no miss pinto admitted to her deposition that she continuously heard them ordering the protesters to stay on the sidewalk one statement of facts they say there was no order to leave or disperse and you say undisputed what does that mean i think we were conceding that the word disperse was not never directed by the police officer to leave or disperse that yes he did that then you say in response to after complying with a request just didn't go stood silently on the sidewalk and you say undisputed so you as far as i can tell you have conceded that they were never told to leave or disperse and that she complied with whatever the order we agree that the word disperse was not used and maybe the word leave wasn't used either but everyone agrees it is completely undisputed that these protesters were continuously told to stay on the sidewalk and out of the street do you find that is where they were they told stay on the sidewalk or you're going to be arrested because by the way that yes one officer dia's citizen's criminal complaint he says that allows her to get out of the street and on the have to say and you're going to be right if you don't pretend to be all of us my dad let's go back but in any event you can put all of this to the side because the video shows her blocking traffic and so even if you don't need probable i have seen the video if i were going to judge what this video shows i would say that it shows the police officers blocking traffic to screw the scooter can't go can't move because there's a police officer in the way not because  the traffic that's being blocked is the police vehicle so if you look at clip two and you push play and then you push pozzi mediately you see a wide open shot of twelfth avenue and fifty six street there is nothing blocking traffic then you push play the scooters are moving north on twelfth avenue beep beep beep beep beep they're all pushing their horns and then they come to a group of protesters and they have to stop because the protesters are standing in the street just in those in that miss pinto is in that group with her arm's length with other protesters in the street with her eyes closed defiantly standing in the street having heard the police say over and over again stay on the sidewalk i didn't see this i saw police officer blocking  was i would ask the court to watch it again and maybe very slowly or a couple of times the first few seconds the officers are driving north on twelfth avenue that is traffic they were forced as they were beeping their horns they come to a group of protesters standing in the street as long as there was arguable probable cause to believe that miss pinto was blocking traffic which the video proves that there was in this case needs to be dismissed you don't even need to address the other charges because as long as there was one point since i saw something different than what you saw why isn't there a dispute i'm honestly i'm not really sure how to respond to that because the video very clearly shows the traffic moving up twelfth avenue i would just ask the court to review the video and i'm so i don't mean to be disrespectful or if the if the court really concludes that the video doesn't show that than maybe there is the fact same video you're talking about exhibit i think it's a reference to the yeah it's there's a d v d attached to i think it's page one twenty six or something i'm not sure exactly and it has two clips on it and they show the exact same thing from two different perspectives one from the view of the sidewalk and one from the view of the street and the one from the view of the street you can see that the cars are moving north and there is no they have cited no case that would clearly establish that an officer who sees protesters standing in the street with their eyes closed like defiantly daring the police to arrest them is and the charge having to do with a refusal to comply with a lawful order to disperse you're conceding there could be a dispute with the documentary no i we think actually the evidence is very clear her admissions and the video evidence prove d but her admission that she heard them continuously saying stay on the sidewalk and that she did in fact on more than one occasion walk in the street after hearing that and the video evidence showing her standing in the street after she concedes that she heard those repeated instructions that anywhere near that ok so that's another point her she submitted in response to our motion and affidavit contradict deposition testimony at her deposition says she said she didn't remember the route that she took but she heard them continuously saying stay on the sidewalk now suddenly after we file our motion she remembers oh i walked up twelve avenue and they weren't making this announcement there but that completely contradictory to what she said in her deposition would you say and decision she said i heard them continue in this is her word continuously instructing the protesters to stay out of the street on the sidewalk that she nonetheless walked in the street the video shows her standing in the street linked arms linked and in fact because i think four and as they they all take steps backwards onto the curb you can see the first one they do have their arms like because when the first one steps up on to the curb he sort of holds them up yes their arms are linked her eyes are closed she's not trying to walk in the street because the sidewalk is too crowded she's standing directly in front of the police who she admits told her to stay on the sidewalk she is defying an order to stay on the sidewalk the law has is clear that orders to stay in one area and out of another area or to move from one area to another are in order to disperse or at least arguably are in order to disperse sufficient to get this officer qualified immunity going i'm sorry i was city hall park and he did leave briefly but then he came back and so they they arrested him because he had not in fact comply or temporary compliance this is not real compliance they don't she can't just jump on and off and then every time they say get back on she gets back on and then they have to just let her keep doing it she violated their orders and i would also just like in closing to say that it's easy to watch these videos in the comfort of our offices and say maybe this arrest wasn't necessary but that is not the standard here to the officers on the street that night they didn't know how the night was going to turn out they're faced with hundreds of people on the sidewalk very close to the west side highway some of them like miss pinto seemed very determined to be in the street not far from here protesters that same night blocked the holland tunnel it is for the protesters own safety to keep them on the sidewalks and also for the convenience of the citizens of this city that traffic keep moving the this was a good arrest and the officer had at least arguable probable cause sufficient to give him qualified immunity well here rebuttal thank you you thank  thank you honors if i may briefly first i would actually also ask the court to review the video i think that it is being mischaracterized again and that is look which one is there are that low it's that i've looked at so tell me which one it is you want me to look at like to address your honor's comments about why she should be instructed not to violate the law because i believe that is an important point in this video you see that she is actually complying with the instruction that she is giving there is absolutely no objective reason street after she said that continuously she was told not to be in arms or linked with other individuals and there's traffic there that she's in violation of this so would you would you concede that i believe she's not in stand statute well that's because those facts alone you would need to establish that she entered active lanes of traffic that she or she walked along the sidewalk in contraband in along the street along as opposed to walking using said that she was continuously at points during the march told to get on the sidewalk and that she and another protester she is martin with continued to comply with whatever instructions they were given it's very easy to see you know what she was doing because she was carrying a sign up side so it's quite easy to identify the person of presumably the least intelligence in the group and see would think they were doing so she sort of identif honor i believe you can identify her in the video and again she is not engaging in any conduct that objectively indicates an intent to cause a public disturbance or public alarm she merely stepped briefly at the at the intersection for people step out then another four people step out than thirty people step out then there is the west side highway which is about eight or ten lanes across and before you know it they're all having a very good time everybody is in peril including the police that made that i mean if you if you look at it you don't have to say that that's what your client was doing but you could say that that's what the police feared was going to happen and that large numbers of people including the people who were walking with your client peacefully protesting we're going to be swept out into the street and be subject to to to  i think it's a very important point you're our because actually here in this case the officers did exactly what you based on that belief instructed the the protesters to return to the sidewalk and it is undisputed that all of the protesters complied with the order immediately after they violated the law and they obeyed the law you know i mean you stop somebody for speeding and you say well yeah i was speeding back there but you know when i saw you i i stopped speeding that doesn't get you any place  it so in this particular case the protesters had approached west fifty six street and it appeared as a police have conceded again that the officers at many intersections blocked traffic to allow the protesters to cross that is undisputed these protesters approached this particular intersection observed many police vehicles we went in a line went through the intersection thing before you can really can't get away with that i read the passage and that the the lawyer for the other side made plain we're not talking about intersections and to say we you in the street you say yes i was in the street crossing into sections well everybody is in the street when they cross into sections your client knew perfectly well that's not what was being asked of answer and it was corrected and then she said one word yes period your honor i agree with that except that that was in reference to hours earlier and that she had entered the street at times during a multiple hour march and she was not being called in the criminal complaint sergeant d s specifically stated that her offending a conduct had occurred between west fifty six street and west fifty seventh street and it is certainly implicates due process concerns where this officer alleged that her offending conduct occurred on this particular block and then after the revelation of video evidence that directly contradicts his testimony and his sworn statement of facts in the criminal complaint he then alleges oh