occupy wall street to call the park is a round of what occupies around a one block rectangle square block rectangle in lower manhattan it's a privately owned public space or pops that is own small block of city blocks  stay open and be maintained for public use twenty four hours a day seven days a week unless there is an exception that's granted by the city after process and the regulations that apply do allow the private owners to establish impose certain reasonable  rules of conduct zuccotti park had been a site that had been traditionally used for group congregation and free speech activities and certainly had been used frequently by wall street protesters in the preceding six months for those purposes  in the late evening of march seventeenth two thousand and twelve the police department unilaterally decided to close the park there is conflicting testimony as to who decided to do that and why and exactly how that came about there's one version of events that comes from there's another version of events that doesn't gel that comes from inspector there that does that matter i mean there's no dispute that they gave an order to clear the park in order to clean it and i would assume you would concede that certainly dispersing people to ensure that they can clean and keep the park safe is a proper thing for the police to do it doesn't matter what their intentions are or whether they made the decision unilaterally doesn't it doesn't matter that the appellant's didn't heed that order i think it does matter your honor because i think it goes to whether or not that order was lawful and i think if the police department unilaterally decided to close the park without a request from the private property owner for purported violations of the parks rules then that's very different than an owner coming in and giving the police department permission to or asking for their help in clearing the park i'm sorry your honor doesn't the record contain evidence that brookfield represented decided to close to park for concerned that there's a crowd there and they have some they have some concerns about the crowd and they decide that they want to close the park for purposes of the fact that the crowd might be getting just really good to close a park then i think that's too vague or out of their mere concern about possible disorder i think that's the under the facts that the court just presented that's too muddy up tents and other things like that and they knew that the park and specific rules against it and they were concerned about what might grow out of that they do that i don't think so your honor i think that's too i think that's too attenuated of somebody it's oh it's private property well i mean all of the private individuals going to force through certainly those are private rules and it's not the police department's job to enforce my private rules in my apartment for example of a but the first amendment doesn't always creep into your apartment first i'm there and yes your honor i think that's true that's the first thing you told us you talked about a public park that's that's right your honor not well i mean i think it's public and for some purposes your claims but not for the purposes of any defense but not for the purposes of any defenses but i don't think the mere fact that it is a public place authorized the police to give order dispersal orders you are naturally why was the order unlawful in your in your mind i think the order was unlawful because it did not come as a result of or at least a jury could find that it did not come as a result of a complaint from the property owner which is the procedure that everybody testified that was followed with respect to the enforcement of the private rules as a block that is you know there in the morning there are hundreds of people who cross it to to get from you know the transportation to to broadway it's not true and you're saying that the police could not intercede to try and keep that area clear without on their own go in and try to do something under that circumstance i think they could that would suit that and that would also how is this order on lawfulness well that there were hundreds of people who were setting up tents or out of the testimony was that they were perhaps a few people who had done that at some earlier points in the day and the record indicate there were hundreds of people there in present in the park yes almost all day long there were hundreds of people the park it's certainly a large enough to accommodate those numbers of people and and there there are there was your you could you know w whatever it's a small it's a small block that's the point but so you so so if we disagree with you asked to whether the order is lawful then mark let's say we conclude the order was lawful then walk thank your honor if even if the order was lawful and it was lawful for the police to arrest the plaintiffs shortly after they were arrested they were loaded onto an m t a bus and by that point it took for transportation to a police precinct and for arrest processing and at that point they had been hopelessly separated from any officer who had observed them do anything prior to their arrest there was no way for police to match them up with any officer who could swear in an accusatory instrument they had observed them engaging unlawful conduct the cases so there could not have been prosecutions without any such officers they knew that the police department's procedures and practices require that under such circumstances the police should have cut them loose at that point and they didn't and instead of cutting them loose they brought them to the precinct where about fifty arrests that night around eleven officers process those arrests including a number of the defendant officers as part of that arrest processing they filled out  it took them about between twelve and fourteen hours at the precinct to fill out arrest processing paperwork that contain false information how many people around fifty or by who have been assigned to around eleven officers about five each so they created arrest processing paperwork over the course of around twelve to fourteen hours that contained false information about what the officers who were filling out the paperwork had observed they forwarded that information and that paperwork to the prosecutor and then over the course of the next about twelve to sixteen hours those officers while the players were being detained those officers  continued to process the arrests relying on the statements that they had personally observed the plaintiffs and it was only when the district attorney's office interviewing the officers relying on th statements in the booking sheets in the first place realized that the officer had not in fact observed what they said they had and they have ventured to release them after somewhere between twenty four and thirty hours in custody so even if there was probable cause complaints filed in the criminal court of the city no your honor there were no prosecutions complaints so no it was an arrest but there's no filing of an accusatory answer correct your honor none of these cases and and under the i think there's a problem with saying it's only if the prosecutor ends up prosecuting the case and becomes an issue out of arrest that there's an issue problem cause or not presume you're wrong is probable cause to the rest because you your complain isn't with the officers you arrested you complain is with but where does the fact where does a processing document have to be based on personal know why it doesn't run on your shoes why are you based on hearsay if it could have been but that's not what happened here when it's based on hearsay and there's testimony in the record about this from the chief of department at the time and from other supervisors at the time if an officer informs me of something i have to put in the paperwork i'm informed by that officer the x y z happened not i observed it if i put i observed that i'm not telling the truth you can see though that no criminal proceeding was commenced against days i do your honor but i don't think there needs to be the commencement of a understood i do make that concession a yes i want to make sure that you and i agree on it that's that's right i do agree with that your honor i see my time is up i do have didn't want the part cleared that evening so setting aside the issues that you have raised today regarding whether the n y p d is able to act on their own in these situations and we would argue that there is the possibility of doing that there is evidence that  rules that brooke that mr larkin again on behalf of brookfield used a bullhorn to announce the park needed to be cleared so that it could be cleaned to correct those rule violations the ultimate question that plaintiffs seem to rely on that there is a little bit of confusion as to who exact which exactly and why p d officer was informed by brookfield that they wanted the park cleared it's kind of beside the point where there's no question that brookfield did want the park cleared as evidenced by the announcement that they're making with the bullhorn to those who are gathered in the park moreover even setting aside that issue that brookfield did in fact authorize it whether that whether the existence of brookfield authorisation ta outside the realm of probable cause the answer is no because reasonable officers seen the situation seen brookfield act seen the situation the park could have believe that an author's onto the argument that once they were put on the boss and got separated from the arresting officers and the officers who were with them had no personal knowledge about these individual arrests therefore they should have been released at that point a couple points on the out there the first is that there's no evidence that any individual officer was subject was it was actually aware that there was no means to proceed with a prosecution in these in these cases but surely they were aware when they swore that they had arrested the particular individuals involved that that was not a true statement correct and i think on that point it's worthwhile separating the plaintiffs makes two arguments based on the separation the first is that they were unlawfully detained you know beyond the point that's that that they should have realized that they that they didn't that they can become separated and second that they're that false information was filled out right but i think it would be one thing if the officers had said based on information i received from another officer i have reason to believe that this person failed to follow an order it's etc i don't think we would necessarily be here today if they had done the problem is by saying i personally  observed the individual failing to heed a lawful order or what have you it essentially suggested it was false correct and by by appearing to comply with the requirements that basically caused the delay in the release or at least i understand this is their argument because of the lay in their release so it ultimately instead of being cleared up right right like that it took thirty hours before everyone figured out that there was a problem and that thirty hours that they're basing their claim on right so i couple points on that the first is just as a matter of timeline the point that they were arrested to the point that they were released just thirty hours it's not thirty hours from the point that the arrest records were filled out to the point they were released  following morning at around three o'clock the decision to not to prosecute number of hours sixteen to eighteen hours if a jury could have found that they were held for longer and that that you know marginal difference attributable caused by the false statements in the officers affidavits why is that not a valid claim because there's no evidence here that the that anyone was held in reliance on those arrest records as opposed t analogy had one of the plaintiffs one of the arrestees slipped through the cracks and arrest record hadn't been filled out there's no reason to think that that person would have been released any earlier than they work so in that sense does your opponent says look they get separated from the people who arrested them they then go ahead and officers without firsthand knowledge go ahead and process these people and they assert themselves that they saw all of this occurring that they're making representations that occurred in front of them i haven't heard you say that they didn't do that but but then and we're using language like they swore to say submitted affidavits on this and i what i'd like to know is because i haven't looked at them i  ignorance as to that are those documents in the record are they signing supporting depositions or are they million merely filling out yeah to with i've seen arrest dockets before where people are arrested and then there is a there's a factual scenario volume the numbering for seventy nine for eighty three four ninety five for ninety nine and five three for each of the plaintiffs and what the records show in three of those instances on pages four seventy five for seventy nine and five of the three the narrative which is not sworn to it's not attested to the narrative says that the officer observed the plaintiff and then the arrestee in the park at all and that's false in me ask you on the fair trial claim in richard d and barnett this court held that a fair trial claim lies were an investigating officer fabricates information that is likely to influence a jur verdict forwards that information to prosecutors and the plaintiff suffers a deprivation of life liberty or property as a result i take it here you would concede that there is evidence that is certainly sufficient as of the first four requirements testimony that they personally observed something is certainly likely to influence a jury not to the court at least sufficient to get to a jury post to survive summary judgment but potentially but again i would draw the line that nowhere no charges are filed to say that there's a fair trial claim or criminal procedures had in a memo that autism maybe it's a misnomer and it and it really shouldn't be called the fair trial claim i guess that my point is just a zero to zero in on precisely where you think that claim fails i take it it's on the last problem the requirement that the deprivation of liberty and cause as a result your argument is that to the extent there was a deprivation of liberty here it wasn't caused by the fabricated testimony it was caused by good doesn't matter because ultimately a there was no criminal procedure there was no criminal complaint filed so that in your view that takes out the fair trial claim back b if there had been no paperwork filed they had forty eight hours in which to detain just told somebody to jerk somebody around for running that's the point i want to spend i'm just very briefly before before i sit down which is that the fact that the officers were honest with the district attorneys that there that there was going they could have gotten away with this if there was actually ill will they just didn't have to tell the district attorneys but they hadn't been the ones to see it the fact that they were forthcoming with the district attorneys which led to the charges not being filed the declaration to prosecute indicates that there was not ill will on the part of the officers in the reasonable jury couldn't find that they had exercised ill will up to this point but no fair trial time again on that point i would rely on the fact there wasn't deprivation of liberty eyes to the excessive detention claim get around the presumption i want to just zero in on what the argument is there is a deprivation of liberty there's twelve to sixteen hours that they were held after these arrest records were filled your argument is that it's not caused by the false falsity in that in those records that's correct yes ok thank you for the reasonable jury could conclude that it was caused by the false statements i mean what was going on during the entire about the beginning about an hour after they were arrested was arrest processing and presentation of the case to prosecutors they were processed at all but if they were just sat there and they waited for the officers to come back we had first hand knowledge and they sat there for forty eight hours would be no constitutional deprivation might have been a problem under new york law but there wouldn't be a constitutional deprivation under under the fourth amendment which i agree runner but that's not what happened well that's so but you still have to show a causal connection between the wrong and the and and between the activity and the harm that's and and and i guess my point is that it is a good no right is it but is it is indicative of malice i'm not certain about that but but but the simple fact of matter is that because i have a hard time understanding how it it extended in terms of how you played it because the d a could have just set said i'm not going to look at any of this until i have a chance to talk the action but that's also not what happened your honor what happened as a practical matter and what the record establishes i think on equivocally is that the entire time that players were detained except for about the first hour however long it took for them to get onto the bus and at the midtown south precinct the officers were involved in creating the very paperwork that we're talking about and we're just untruthful in the context in gauged in at least some and some of them engaged in most or all of the conduct that was alleged no real dispute is there that they did these things what was false was the i observed part that's right with the exception of maybe one or two plaintiffs and one or two things they would be very upset at me if i lump them all in the same group i mean i understood the claim to be principally false rast is there a separate claim for innocence false imprisonment that is assuming the initial arrests are valid is there are separate claim for the additional you know twelve hour delay because of the alleged delay because of the processing and the trauma twenty eight i'm not sure if it needs to be conceived as a an additional that's pled in those words there's certainly a fourth amendment claim there's certainly an excessive detention claim there's certainly a false arrest claim within the context of the false arrest claim i think it's well established that the police can't ignore exculpatory evidence in this case there was rest i can arrest you or i can arrest you if you do even if you don't commit it in my presence and someone else gives me reasonable cause to believe that you committed a crime in my presence i can then hand you off to somebody who takes you to the county jail and begins to process you to be held until you're arraigned in front of a local magistrate now i'm me i'm a signed something or i may i may even call the fellow and say put this down and  that person then puts down what i saw or what i heard and that's the basis for holding and and i don't and i don't think that that's either a false imprisonment or  violation of fair trial but and my problem that i'm having with this is that if indeed the people who had written the substance of the narratives that ended up being the arrest records for these folks made things up about your clients that's one thing but if that if what they wrote was accurate as to what the arresting officer the reason why the arresting officers arrested you i have a hard time understanding that even though there's a misrepresentation it's the basis of their arrest record there's no public law require meant that to be based on first hand knowledge as well as the arresting officer have to fill out the rest report no your honor but but and this is what all of the officers who testified about this testified and it's  between pages seventeen and twenty of the my opening brief i go into some detail about this you cannot put in your according to the n y p d chiefs you can't put in your arrest processing paperwork i observed the this person do x if that's not true i may not be a limb a not be in violation of department policy the question is whether it's a constitutional torture well enough itself i don't think it's a constitutional tort but certainly if it gives rise to a liberty deprivation which i think a reasonable jury could find is  happened here that it would rise to the level of constitutional violation thank you are one of the thing if i may one of the officers did fill out an accused tory instrument that's at five sixteen to five seventeen and it was not against any of the plaintiffs in this case but it was as