column and verses the city new york it must be decided today or one whether or not dismissals by a prosecutor voluntarily mid of felony assault charges was a favorable terminations to vincent coleman and they're taking the position that that was a mercy dismissal and therefore was fair that's correct they're saying that this is an exception to the general rule that a dismissal of voluntary dismissal of criminal charges they can't be resuscitated or brought back that makes sense i mean if you if there's a theory is that it was an intentional infliction of you know an assault on this particular officer i drive a car then that could sustain a felony and could sustain a misdemeanor and random or did was here and then she fell down we're going to read the evidence that the government government vance's so why why does not make sense that they just decided not to press those charges because they were too heavy this case while you were i think for the for the one reason because there are very serious charges and they are heavy as a as you've just stated it seems unlikely that if the prosecutor actually believed that this individual and intentionally struck a police officer formatter duty with his motor vehicle with the intention of harming her that he would be so willing to dismiss these charges that those are heavy charges and those are things that ordinarily i would think should be prosecuted to the full the problem however in the end and the reason that there are inferences the can be drawn the other way certain that these were unindicted felonies this was four months after the incident so that means that that done the the defendant was required to waive or consent to waiver over some period of time in order to keep those is alive before they were going to be dismissed either that or they're going to have to be presented to the grand jury but what's most important and what this court has already decided in the in the first appeal was that it's very possible or at least it is possible enough for a reasonable jury to determine that those assault charges were fabricated because if there were there was no probable cause that's the court last time first appeal found that that was a question for the jury so then if if a jury could that this was just made up that he didn't hit the one that's correct that this that this is this is a these these are fabricated terms and that this is fabricated allegations that she went to the hospital she did go to the she's going to make these allegations if she made fabricated allegations which this corps already found as a possibility that a reasonable jury could find that then certainly she would have to go maybe a step further however if you look you sho buy that reasoning it's consistent with what i'm saying because they knew that because the prosecutors never actually prosecuted any of these charges in fact it was never put before not only a grand jury was up for it put before a motion court or a done away hearing it was not put before a jury what what the defense or the city has been arguing about that is that there should be a standard applied called in what they're calling an independent deprivation of liberty however the way the jurisprudence is operated in this court including the walker  case and following general precepts of common law in in application of tor principles the proximate cause would be a more appropriate standard to use in fact if you look across the country you do a search as an overrate say that deprivation of liberty and the rule that i think that i or you applies is that it's a proximate cause the question is whether or not fabricated evidence that has been put forth by police officers could serve as a proximate cause of the deprivation of liberty not necessarily the entire basis because obviously there are other charges for which there was probable cause but remember there was fourteen how many people how i don't understand how that rule would be workable w a jury could make those decisions itself a reasonable jury could occupy join in for says as to why it was that the case was not dismissed over a long period of time you'd have to call the problem not only prosecutor or presumably the prosecutors supervisors to influence a decision about what to charge in which charges to maintain it's an it's an excellent question and you are right what i should say that that's a question that i've been grappling with myself but i believe that it wouldn't be necessary i believe that on this record for that's right i think the typically some of the now says the way it goes it looks to see whether or not the the dismissed or the fabricated or false charge was a higher charge a top charge because it was a higher count for instance that may have an influence over the deprivation of liberty whether it was to continue with the prosecution and if you look at the cases  in the recent case from last year hoyos there is questions especially in in denial of fair trial analysis about whether or not there's a proximate cause between fabricated evidence and the deprivation of liberty in other words if in for instance in this case i would argue and i am arguing that because of the seriousness of the nature of these charges the assault against police officers the prosecutor would be less likely to dismiss police vehicle or assaulting as a police officer that wasn't so easily dismissible or compromised by the prosecutor and for that reason they kept this prosecution going until the bitter end until it was finally  point very hard to it sort of like well that's what should happen in this case but it's very hard to to come up with this with an actual magical rule but you are for the first of all i think an easy sort of starting point might be to look at the case and i hope i'm pronouncing that correctly in the host cases it's not dropping the names of the cases we need yes you're up to two o'clock in the end that would be that there's a proximate cause between in those cases fabricated evidence like this case fabricated evidence and a deprivation of liberty that is if there if if the charge the one that's false charge is a predominating factor or one that's going to do that created influence on the decision of the prosecutor please the court max mccann on behalf of the pallies this court should affirm because the undisputed evidence proves that mr coleman did not receive a favorable terminations of those two felony charges and did not suffer a deprivation of liberty as a result of that one misdemeanor charge he had for appearances in court sounds like it might be driven by an assault on a police officer rather then the third degree misdemeanor assault and reckless driving except for the fact your honor that the prosecution continued for eighteen months after those two felony charges were dismissed and this court has already ruled that two of these misdemeanor charges for obstruction government ministration and unlawful flaying were supported by probable cause because it's undisputed that mr coleman did flee from police officers during a traffic stop and those are the same weight as the only remaining claim that mr coleman says was malicious it wasn't your honor because the prosecutor stated on the record three reasons all of which are consistent with a mercy or compassion dismiss which this court and the new york court of appeals have confirmed are not favorable terminations he said this is mr coleman's first arrest and in evidence the district court found that that's evidence of a misdemeanor of mercy or compassion dismiss the dismissal those are all three consistent with mercy and compassion dismissals and also the fact the most frequently consistent with really no evidence to support these charges means real serious charges of assault on a police officer with the car that's and there's something mark this case that has this strange odor to it because these cases these charges of vehicular assault on a police officer are just sort of as as we've already discussed during the first part of this argument there's still nine charges left pending against mr coleman if found guilty of those charges he would have suffered significant consequences so dismissing the two felony i mean you look at the record your i mean i've seen i've seen of you from some prosecutors that's as unfortunate as it is it's that sometimes getting hurt is part of a police officer's duty and that's sad but it doesn't you're on to the fact remains there's no evidence there's no evidence that this dismissal was anything other than a mercy or a compassion dismissal that's the plaintiff's burden to establish each element of his malicious prosecution claims and he hasn't he hasn't suffered a deprivation of liberty with reason with respect to that charge he each time he went to court he was answering for eight other charges two of which this court found were supported by probable cause another four of which route did not result in a favorable terminations because he accepted on a german and contemplation of dismissal here to mr coleman is attempting to establish his claims by speculation by saying well a but for this one misdemeanor charge when there were three other misdemeanors that he was facing each time he appeared in court he's soup supposing that he might have had a different outcome that's conjecture and that's not sufficient to survive with the proceeds from th right now as far as i'm aware the criminal defendant now plaintiff did move to dismiss those charges and the criminal court found that they were facially sufficient so it did have some motion practice but as mr man n suggested it did it never went to a jury that's correct but the case law doesn't require a prosecution to go to a jury under these circumstances now the court's decision and walker really is on point here there were two robbery charges there sorry to burglary charges there and the plaintiff hadn't suffered a deprivation of liberty of the one that he received a favorable terminations on because he was ultimately convicted of the other robbery charge now here mr coleman avoided a conviction but the same principle applies the importance of the can like a conviction because the prosecution basically  lucia's prosecution but it could be consistent when you meet mooches prosecution because the the prosecution was controlling everything the charges the room the church disposed of the churches that we neglected except that this court has already found that at least two of these misdemeanors were justified that's the significance of the conviction and walker is that it stablish is that the prosecute the time that the criminal defendant was deprived of liberty w undisputedly justified by other valid charges so here that we would submit that walker does control and my final point would be that mr coleman these invalid charge of the charges were either withdrawn  neglected then it's up to the plaintiff to show that he suffered a deprivation of liberty as a result of the one remaining charge that he claims would be malicious and he hasn't done that on this  record mr coleman also should not be allowed to amend at this stage to add a denial for right to fair trial claim there's been no motion this is suggested in his reply brief that he should somehow have a new claim that was not pled that was not before the district court that no discovery was on this is far too late of a stage for four additional claims to be added and that claim would fail for the same reason anyway thank your hon just to respond a very briefly to some of the points made by counsel first of all on the question of the of the burden of proof being on the point of to establish all the elements that's absolutely true however in a  question for federal terminations when the argument has been made that there's an exception to the general rule for federal terminations that burden would belong to the defendant to make on the record that is and nonetheless dismissed it out right in this case there are inferences to go in both directions certainly a reasonable jury or a court could easily determine that the did it was a fair with her nation especially because a jury could detect it could decide that the charges the allegations were fabricated that the salt charges were fabricated that the next point i just want to mention is that walker case was we spoke about him a moment ago and that is that that case is very much different was a pro se plaintiff who had been in custody on unrelated burglary charges when he was finally charge for burglary for burglary charge those who went to trial and the jury believe charges certainly a reasonable prosecutor could believe also that there were not viable charges and they had no choice but to dismiss them as felonious into a lie only a part of a misdemeanor assault that eventually was never tried  people's would would say well that's the reason for the court appearances that's correct that's the reason for the deprivation is salt george's were not there which ok you want to go on were not the reasons  do you say to that that's what they would say it would you say to all what i say is what this court already does and it's made explicit in the cases having to do with denial of fair trial that a court can do the same analysis that is determine whether or not fabricated evidence was the proximate cause of the deprivation and i think the way it would be done is if there was a c if that false evidence the fabrication was significant enough factor to lead to additional deprivation because we know already that there was probable was no independent deprivation he was he was being deprived and by by charges that were valid charges that at that time you're a it's a i understand i think though i think that certainly what we're arguing is that these because the assault charges were very serious they controlled what was happening in the prosecution as goes back to the point where you're saying that they control the a jury would have to find that these other charges would not have been brough charges if if if it but for the fact that there was an assault against a police officer charge then it could easily be they could easily also say that there was an additional amount of deprivation of liberty caused by the so that though ordinarily these cases for owed for obstruction of governmental immiseration or for reckless driving may be dealt with and that have a dispositive resolution within a matter of a few months this case went on i don't know that he actually took possession of the car but i know that he was he was available to him after that forfeiture action was dismissed and how long how far into the case were the felony charges dismissed they were dismissed in may twenty eighth so the the arrest took place i believe in the fifteenth of january and then those those felony charges continued which during this period of time there could have been a done away motion or something else so that those prosecutor or the or the police officers had made their schedules available for such a hearing there could have been in the termination there was no probable cause at least so far as the assault charges down or one hearing would have ad everything was dismissed thank you thank you both thank you we will reserve decision