yes good morning morning and police of course carl the center of the partnership for civil justice fund on behalf of talents in this matter the plaintiffs in this case are eight individuals who were arrested as part in within the largest mass arrest in new york city's history while they were each and gauged in free speech conduct within a police escorted march obeying all directives and there's no evidence that any of these that any of the plaintiffs have engaged or disobeyed any such directive and the the the officer hooper who gave the directive issued it only to the front line of demonstrators and what we have a day that he was saying you twelve people who are the first it is there some reason why you can't agree to that formulation there was an order to disperse that was known to those in command and who made the rest decision that it was not audible to the vast majority of persons including my clients who were so knowledge that it could not be heard by the vast majority of persons who are then subject to arrest that we are in agreement at this at this point that this court previously in adjudicating this case held that arrest and that he possessed comprehensive information at that time that would establish an absence of probable cause as well as his knowledge of justification for the persons ultimately becoming president on the roadway of the brooklyn bridge the rest also resulted because the n y p d had a policy that was created and you're saying he acknowledged that he was aware that people in the crowd took the retreat of the officers as permission no i'm saying that he was aware that he had he possessed information that established an absence of probable cause in fact the vast moved he was awar that there was is that information because i thought that the ultimate opinion of this court in the last case said that the reason that probable cause was not defeated is that at least the john doe officers in the complaint that was before the court and then more not had no way of knowing that the demonstrators would take the retreat of the officers as permission and commander in chief of department esposito had a different body of not right and i'm asking you are you saying that as positano at any point in any of the testimony that is the basis for the amended complaint was was aware or had a reason to believe that and acknowledge that he had reason to believe that the demonstrators understood the retreat of the officers as permission not that particular i would say what i would point to in his testimony is that he acknowledged that he because it was under his command he had comm escort of that march and as he attests and it's reflected in paragraph eighty two the third amended complaint he knew that the escort was at the front along the sides and in the rear he also knew that the escort continued on to the  the roadway of the bridge he further attested that he was aware about the circumstance that led to the streaming of many hundreds of persons onto the roadway of the bridge including new information that he knew that there was no no person with a bullhorn that was there that he consciously and deliberately did not deploy resources to demonstrate signal or dissuade persons from streaming forward and that he knew in fact is that the the where he says he made a mistake  tactical mistake by not putting scooters or cars or something to block mark and just having a thin blue line instead it is not it it is referring to that element of testimony but it is important to recognize that he understood that this was a police escort in march from the beginning and all the way through to the end in a picture is worth a thousand words in this respect as reflected on page three of the reply brief that march was a squirted and he understood this because it was under his command all the way on to the roadway the bridge placing that information in in his mind at the time of the arrest distinguishes and materially from the doe officers who were not charged with such comprehensive information in it it alters the out from of the probable cause analysis because he knew the persons followed within eight then police escorted march onto the roadway of the bridge having that knowledge that information establishes that he knew legitimate justification for those persons being there in a way what occurred at that front line with the turning in advance it was not even relevant to what was perceived by the many hundreds of persons who esposito was aware stretched so far back that they were standing on the sidewalks walking around city hall park at the time that that occurred  so that when he conducts arrest of these seven hundred persons he knows how they got there this is something that the doe defendants did not possess and the knowledge having come up on what the court recognized that from their splintered perspective was a confused scene but from the perspective of the chief of department it was anything but confused because he was in full command from beginning to the end he was aware that it was the police who had blocked off center street he was aware that it was a police who blocked traffic to the road where the bridge because he himself gave the order he was also aware of the policy because he formulated it along with commissioner kelly that authorized the arrest of protesters who had been marching in a police escorted insane and occupy wall street march without clear and unambig protesters to proceed on the roadway and so you went back and tried to fix that with the remote complaint and i'm having trouble understanding the allegations of it but try to address that issue for example a new paragraph forty says the police convey an actual or apparent permission or sanction for plaintiffs to engage in marching activity in general comma as well as movement onto the roadway of the brooklyn bridge what does that mean are you are you alleging that the police gave permission overtly to the protesters that they could proceed on the roadway absolutely where with the escort in fact that was he said exactly what he denied news position that he gave any permit to any kind of permission he said we just couldn't stand there any more because they were come in one way or the other and he knew that the he knew that the many hundreds who followed him streamed on to the bridge did so under police escort and i think it's very important to step back in terms of sanction and permission the policy kelly in a spirit of formulated a policy the same they reinvigorated a policy that they previously had in place during the two thousand and four and see another time of active protest activity where they actually sanctioned unpermitted and otherwise unlawful protest marching activity the he knew about then that was no good deed goes and sued well they they are asking them to basically take the position that you don't get a permit we're going to arrest you soon as you step off the  the reason why there is a civil rights in first and violation is not because of the permission and the discretion to allow them to march but because there was a constitutional defect in the policy which was brought to their attention by the c c r be previously which is that that policy contemplated the and authorize the arrest of those same marchers without there being notices when that sanction was for whatever reason good better otherwise revote and as a consequence of that this is what leads to the seven hundred persons moving onto the bridge never being given notice that yes while actual sanction actual permission has indeed been allowed through out the morning you have to tell everybody you have to go person off the bridge it's clear in the case law that that notice prior to the condition of prior to the exercise of arrest needs to be communicated to those who are subject to arrest thank you i know you reserved a few minutes you may please the court richard hearing for the phillies this case is no different from the appeal this court decided the last time the the events are documented thoroughly on videos nothing that is alleged in the third amended complaint goes to the question your honor identified whether esposito had awareness that the retreat of that thin blue line on the entry to the bridge would be understood as a grant of permission that the entire case this is this is a groundhog's day of the first appeal the question the first important one is was permission given this was a march that was on the sidewalks the entire way with repeated statements stay on the sidewalk all the way to the bridge these protesters the only ones who were arrested were on the roadway of the brooklyn bridge many protesters went over the pedestrian walkway of the brooklyn bridge and were not arrested there was never permission to go over the roadway well paragraph one thirty five the new complaint through many complaints proposed says police permitted or conveyed permission for the march to proceed upon the roadway of the bridge by escorting the march and leading the march there upon so in the absence of the videos that are part of the record wouldn't that be enough to to meet with a twelve b six zero emotional call for them unity it's awfully conclusory and it's a legal it is a legal conclusion but the video i  think the exception of the video is an awfully large one i mean this case in the first appeal the videos loom large and they loom large again here they depict very clearly what happened at middle of the act is as the court said in its first appeal inherently ambiguous the point being this differs from a case for permission is given and then must be revoked this is a case as the court decided before where it is there's no meaningful dispute that the elements of disorderly conduct in this case blocking a a major he killer rode away were satisfied the question is is there a defense here my question was this though with this allegation i just read to be enough to keep the case going i'm doubtful that it would be me finish my question since you didn't answer the first question is would that allegation be enough but for the videos the video seemed to contradict that allegation is it your position that we have to look to the videos because it is conclusive you'd need more specific allegations that explain what that means not just that permission is given but in any case the video exists here and that that form of certainly the form of generalized allegation teeth of the video particularly after the case has been up to this court and resolve the wants is not enough and we're really back where we begin in the last appeal which is there is at best some  one plaintiff was present to perceive what occurred at the base of the on ramp so this is no nothing in in chief esposito his testimony creates any difference in fact from the relevant facts i saw was that many were many over twenty may have been dropped within a day and then i don't know what happened at the remaining twenty minutes far as i know no conviction and certainly not many i just touch briefly on on the second point which is mono in the first decision i think i think it was that the two major premises of the court's decision were both rooted in the law of probable cause the first was an explicit statement statement that it's not subject to serious dispute this is at page ninety two of the first  pinion not subject to serious dispute the elements of this court disorderly conduct was satisfied in the second premise on the question of defense at page ninety three of the opinion at most the law of probable probable cause is defeated if officers deliberately disregard facts known to him which establish justification that in that section the opinion the court cites jock's and curley both of which were addressing the question of probable cause at that point not qualified immunity so when you with your most probable cause found by this court for who are all the rooms is there any chance of manaul liability that's of sufficient basis to resolve the entire people probable cause found by the court in the first appeal i'm offering a second independent ground for resolving the narrow sub very narrow path where where a single act by a final policy maker can be sufficient the second is a claim that policy based on based on highly divergent pa statutorily designated officer subsea subsidiary to the to the charter vested authority of the police commissioner focus is the only policy maker the yes and there's nothing there's nothing particular extreme about that position in fact there is no decision prior to the first appeal where he walked through the allegations undermined in so far as they allege the pattern conduct like this and found that the pattern alleged was generalized and dissimilar from from the events of this of this case and specifically because so many protesters were were allowed to continue marching in not arrested on the pedestrian walkway in that this case presented the distinctive and not before presented question of protesters who went on i've never heard of this happening before protesters who went on him blocked a river crossing on the brooklyn bridge and just a touch on the c c r b findings two thousand and six that they repeatedly cited by the plaintiffs but those it's a two page letter she will see c r b in two thousand and six and with that you know sometimes officers fighting the last war and i'd say that's what's relevant about about the c c r be findings that they describe the arrest made on sidewalks they describe dispersal orders where bullhorn was used their recommendations specifically usable horn in that and they describe dispersal orders that were confusing meaning an officer said get off the streets when what he really meant is also get off the sidewalk here the dispersal orders given on the videotape are not confusing they're clear the officer read them from a script read them very carefully he then revise them and made them more pointed after the continued refusal to move in the locking arms of the of the front basically put the cuffs on somebody who may have shown up from a precinct in queens ten minutes before the arrest right ok they had no plan on what i knew nothing about anything that is correct and there was no particular knowledge because they were practically fictional when there was no actual identified officer but when you bring in chief esposito his knowledge that particular arises the knowledge he knew that there was an escort he also knew that there was an escort that proceeded on onto the roadway the bridge and i was like my first opinion that they made me eat and that because that's essentially what that first opinion that was withdrawn said was that there are different officers and they have different degrees of knowledge and so we can't say there was no qualifier there was qualified immunity as to everyone because we're going to who we're talking about and we are not talking about everyone and identified persons we are focused only on the command staff who had unified information within the knowledge that is what actual that is the opera fact that distinguishes the presentation and posture of the third amended complaint from the from the second amended complaint there was no particularized knowledge which is a facet of how of how that case came up with only john doe defendants but now it's presented with very specific knowledge coming from the command staff they know when they met knowing of of the escort and with respect to the video that the video does need to be interpreted in the light most favorable to the plaintiff at this point in you can look at the whole video but looking at page three of that reply brief it's pretty clear those are scoring officers there is a risk warning officers and quite reasonably understood is that in when a person comes upon a peaceful march that is being escorted by the new york city police department under the first amendment they think and rightfully so that they may join in continuing that march in of the first means anything it offers them that protection and it restrains the police only minimal that under the circumstances presented in this case they simply need to give orders doesn't mean that anything else they must give orders before they bridge the police are saying disperse it was fine to be marching down the sidewalks but you can't block the roadway when that's being in the mountains through a bullhorn not agree more in a very large crowd what what do we what do we need we need big sound equipment that at that there's two points in time there are of them that one point also at the time right before the execution of arrest at that point in time they could have used mash they could have used present on this road or you turn yourselves right back we have provided you an avenue an avenue to to exit this roadway you don't take it you are under arrest that would have satisfied the constitutional requirements of providing notice anyone that will fully come disobeyed that unquestionably has is is is violating the law that would that would be consistent with the president and vote in dellums and and all of which in these circumstances hold that where the police acquiesce or give actual or apparent sanction for people to engage in first amendment protected activity that they need the burden falls on the police and to give notice an opportunity to comply with the dispersal or similar orders before they engage in