yes good afternoon justice of the second circuit this is thomas language on behalf of the plaintiff appellant mr z we empower that there was not probable cause in this case independent from the stipulation issue we stay in our brief at page two that the evidence will reveal that the yale police had no prob garbage there the first time when he was asked to identify himself he had three different forms of i d none of which is the one that identified him isn't that probable cause no your  different ones and none of which were here as well your honor the issue there and in my understanding is that mr impala has had several names over the course of the years and so he's gathered certain identification items and that's why there was some confusion there but i don't believe that that issue goes directly to the to the government of yours with government it does go to that claim your honor and it's their probable cause  no i don't think that alone rises to the level of probable cause and i think your honor it's important understand too that this this defendant was on the campus just a day or two before by way of invitation for a certain establish the background for why mr impala felt comfortable being on the premises so maybe he felt comfortable and maybe he made a mistake and maybe he's not guilty of trespass and maybe the ideas were all innocently a convicted of anything but that's not the issue the issue is if the police find somebody there who has no other reason to be there than i was invited to something last week and who then the probable cause is based on a multi factor analysis and i do see your point your honor certainly that is a point on that issue but i don't think it tips the scales in favor of probable cause i'm a larger level i also think it's important your honor if i may change gears to still answer your questions just to change gears slightly right after this incident happened mr impala made a timely request for the surveillance tapes the surveillance tapes would if they were here right now would be able to tell us the truth the surveillance tape hydrant he was in the library no no no no the surveillance tapes would they prove they would show the approach the officers and whether it was reasonable for them to attack him after he came out of the laboratory whether it was reasonable for them anything that would support your theory that the way they approached him takes away from the probable cause that the offices had but yes your honor i understand i could have done a better job on that but i think it's important to understand that the standard has recently been articulated at the federal district court in connecticut i don't have a case cite but it's a very well articulated and well known standard and my point about the spoliation here that's so important especially in this day and age of racial profiling this was a situation that if we had the surveillance tapes all of these questions could have been answered so even if i'm still trying to say what questions we're talking about that would be answered the question of whether there was independent probably cause to arrest mr impious and i guess i don't understand he's he's there and he's not authorized to be there and the police know that because they've had prior contact with him and he's been banned from the  campus no i think the ban your honor i'm glad you raised that took place the official ban letter which by the way is it page one seventy two of my appendix it's a banned letter that i'd like to read into the record if i could your honor i have a few seconds  am writing down for you that you are no longer permitted to be present on any part of the campus should you be found again on the yale campus you will be arrested for trespassing this is a longtime new haven resident and they're now banning him from any any jail property for life yeah loans almost every street corner so this is a serious civil rights injury here and the arrest leading up to that there is then followed by a second arrest and that second arrest this is a companion case that is also before the second circuit court of appeals and so i think it's important to understand that you know again if we have these tapes these these tapes that were still destroyed and the destruction is discussed discussed to page one seventy eight good afternoon may please the court i'm kevin shea from clendenon in shayan new haven connecticut i represent the defendants who were police officers with the police department your honor you're exactly right there are two separate and independent bases on which the district court judge merriam granted summary judgment either one of them independently is enough to end this case and this appeal because the plaintiff has not appealed either one of them on the merits of that the court dealt with the stipulation first but because you started with the probable cause in fact i'll address that first as an initial matter probable cause in fact it was profound precisely on the basis that you were ticky later there were two charges here one was criminal trespass second as judge miriam cited that required only that the plaintiffs enter  remain in a building where he knew he didn't have a license or privilege to be the undisputed facts in this case show that the plaintiff's admittedly all of the essential elements  the yale law school security guard called the yale police and reported a suspicious person he admitted that he was identified as that suspicious person and he admitted that he was on private property and he knew he didn't have license to be there your honour's correctly point out he had attempted to claim that he was invited there previously that event had long since passed and then he tried to claim that he knew somebody who was walking in the library in the gentleman said he didn't know and had not invited him there the other charge that was made was for interfering with an officer under connecticut law as judge merriam reciting bowls providing fake names and failure to provide a real name constitute interference with an officer he did produce three different i d s with three different names none of which were his legal name at the time which was david gathers this is important because  the plaintiff was also on federal supervised release at the time so the judge very improperly found probable cause in fact for both of those charges based on the record independent of the stipulation the plaintiff has appealed he's only claimed that she erred in finding an absence of malice sufficient to support his malicious prosecution claim in the second count he brought malicious prosecution and false arrest both under  whether there was a malice sufficient to support the plaintiff's claim and she said that that would be a separate basis that would have been a third basis it did not affect her ruling on the motion for summary judgment and when the plane to freeze that in his motion f reconsideration she articulated that and said it in no way affected the other two independent bases for her rulings so the plaintiff hasn't hasn't appealed on that basis the  spoliation the the request that the plaintiff cites that came two days after his arrest if you look at the record i believe that is excuse me full new haven police officers but they are not the new haven police they are paid by university but they are full officers which is why we're here on a one nine hundred eighty three nine hundred eighty eight claim but he never made a timely request there's no evidence of it but judge miriam says in any event she gave several opportunities for the plaintiff to amend his complaint and the plaintive never amended complaint to bring a supposedly ation claim so there's nothing for the court to consider on that basis there was no malice inherent in it there was no the absence of malice was not in any way a part of her ruling on summary judgment it was dicta and there was no spoliation claim i want to start where i want to go back to where the court starts and where right we started in the case the stipulation to probable cause is a very serious stipulation it bears emphasis that that stipulation was the bargain the quid pro quo it was expressly the condition for the dismissal of the underlying criminal charges that the plaintiffs sought his criminal lawyer his public defender  was able to get a knowledge and the transcripts reveal the court was going to not only those claims the plaintiff he's been very clear his testimony is clear in the record is clear in judge merriam cites that repeatedly the plaintiff did not want to accept the knowledge he wanted  dismissal attorney richards his public defender who was representing him for the underlying criminal charges explained to him that he was not going to get a dismissal without stipulating to the existence of probable cause and the reason for that is obvious and it's precisely so that a plaintiff you obtains a dismissal in that way can't turn around and bring these claims he can't challenge that now he can't you know it's cliche but it applies perfectly here he can't have his cake and eat it too he got the dismissal the full dismissal that he wanted and he never sought to undo it when he claims it was sprung on him that he didn't know that his lawyer had to stipulate to the existence of probable cause in order to do that that's why from the get go about three and a half years ago we've been trying to get the case dismissed on that basis the case was originally transferred with the parties consent from judge judge garfinkel i moved her judgment on the pleadings on that basis and judge garfinkel cited the appropriate legal standard he said what the exceptions are that that might apply where a lawyer might not be banned by the stipulations of his counsel and they were identified as when the lawyer is guilty of misconduct such that his conduct is fraudulent when the lawyer acts grossly or inexcusably such as bad faith or intentional neglect of the client or of the lawyer was outrageously in violation of either the client's express instructions or the lawyers own duties we attempted to pursue there by deposing the plaintiff and the public defender the public defender claimed to turn a client privilege the plaintiff counsel refused to waive it we then had to move the court to compel him to be deemed to have waived the privilege or for judgment on the pleadings at that point it was with judge smith judge smith said you need to ask him again to waive it with the warning that if he doesn't waive it the case is go be dismissed the plaintiff waived attorney client privilege finally we deposed the public defender the public defender confirmed exactly that he had been authorized to do what the plaintiff asked and that none of the exceptions applied therefore on that separate and independent basis the court properly found that he was also bound by the stipulation of his counsel and none of the exceptions applied thank you thank you we respect for the request the court to the judgment below  the attention of the district court we brought the attention of the district court in the motion for reconsideration and in several other contexts was also a motion to compel for the missing tapes that set my appendix page one seventy five that was filed by the presiding public defender in the underlying criminal case there was a formal motion to compel asking for the tapes which mysteriously went missing and that's important page one seventy five ok if i may move on any reference you were on the record any statement by mr impala or anyone else as to what it is contended the tapes would have shown by any other witness by by mr impala or any one is there any an assertion or claim as to what happened that the tapes would show well i mean i mean i think it's clear he is he's told me in several conferences that that he had the permission to go on to to go to the restroom and then when he came out of the restroom is when they attacked him with book with the permission somebody gave him permission and that he waiving of permission is on this case should be remanded it to page one seventy of my appendix thank you thank you