thank you the overall case is in re p b s foods the matter before us is ten thirty two ten thirty four lexington avenue ltd vs holden capital group and yon care on trustee thank you chris jani i'll stop with that otherwise we'd be here versus karl in america thank you thank you very much and then the last two cases versus segarra and impala vs gateway community college are on submission will begin with argument in chamberlain morning mr chambers this case began with the activation of mr chamberlain's medical alert device at approximately five am on november ninth two thousand and eleven it ended ninety minutes later with mr chamberlain dead he did not die from any of the medical conditions which caused him to have the medical alert device but i take you it's not the shooting of the gun that's at issue here it's the braking and there are i mean there was a trial with respect to correct your honor and that is a related issue but the the initial and perhaps primary issue in dispute on this appeal was the district court's determination at the motion to dismiss stage to dismiss the unlawful entry claim what with respect to the trial i know evidence your shoes or anything else that's before us at this point only as related to the court's dismissal at both the motion to dismiss and summary judgment stage of the excessive force claim for the use of the less lethal or being back shotgun at the right there in the reason that that spills over into the verdict at trial is that even the district court below ed's acknowledged that what happened with the fourth be bad shot to mr chamberlain is inextricably linked to the reasonableness of officer chorale e file firing the fatal gunshot so if you if we end up agreeing with you and send it back help me out with this will give you both sides plenty of time for what occurs in your view in our view if depending on the claims that this court may find that the just a court erred in dismissing that the excessive force that the fourth shot from sergeant keith martin being back shotgun felled mr chamberlain to the ground and rendered him no longer a danger to anyone would also be inextricably linked court the district court initially on the motion to dismiss dismissed and in general terms the entire use of the less lethal or being back shotgun which was fired four times and on the summary judgment motion we went back to the district court and asked the district court to clarify revisit however you you want to term it and noted that we felt that general dismiss of all four shots from the being back shotgun was not the correct analysis that each shot from the beanbag shotgun had to be analyzed for its reasonable miss because there was a shot an impact a shot an impact a shot an impact and a shot an impact and the district court declined to revisit that issue if you will saying that her grant of dismissal of the excessive force claim on the being back shotgun was in fact intended at the motion to dismiss stage as a general dismissal but that even if she had analyzed each shot individually the officers would be entitled officer martin would be entitled to qualified immunity  fatal i'm not being terribly clear but i'm somewhere in the may well there are a lot of issues floating around here your honor so it's understandable so to clarify there is an individual claim for excessive force against sergeant martin for the firing of the fourth being back shot because there was conflicting testimony among the officers who were the only witnesses left alive to the incident it was conflicting testimony as a reasonable juror could infer from the test from the testimony and from physical evidence that the third shot knocked mr chamberlain to the ground and that he was on the ground on on his stomach or facing downwards to the floor when the fourth being back shot was fired because the autopsy results as the court as the medical examiner testified to a trial noted a bean bag abrasion in the center of his back at the district court in the summary judgment decision so that the children or no more than at some point he turned away from the beanbag gun grass flinching business there was no evidence he was on the ground that time was there well there was evidence that he had he was on the ground in fact officer crowley who in fact fired the fatal shot in fact testified that the third shot knocked mr chamberlain i'm quoting his testimony on his butt that he then immediately balanced up turned and was i characterize it from from his physical temptation and was flying through the air at a low altitude with a knife in his hand at sergeant martin who was in the apartment and there was another officer who unfortunately died in an accident shortly after i deposed him who in his initial police report the day after officer heart officer stephen heart  that that officer hart in his police report written within twenty four to forty eight hours after the incident he or he put in his police report that the third shot had brought mr chamberlain to the ground and that he may have been in the process of trying to get up when he was when he was shot to there certainly was evidence was  the parolee there was there was some testimony allowed as to the occurrences throughout the ninety minute encounter but the  court repeatedly instructed the jury that the information was being provided only to provide context as to what ultimately happened when officer crowley fired the shot and that none of the information fit there was some minor ability to reference that mr chamberlain had been exposed to this extreme use of force and that  he was on the ground when the shot was fired three musa force meaning the beanbag being back which it's in the record that a shoot one shot from a bean bag is equivalent to a mike tyson punch or a nolan ryan fastball for those of us old enough to chamberlain was lying on the ground his stomach when he was shot by officer crowing it's a weaving of reasonable inferences which were under a bear since mr chamberlain is dead we're entitle to he had a bean bag shot on his back there was a bullet hole a few inches from the ground officer crowley fought testified he fired twice both times aiming center mass at mr chamberlain and  he was standing at the time he said he he said in charge of what it was and well he said he was hunched over having just bounced up from being on the ground and was basically correct your honor and i think i had i can't sit down before i cite to mendez the supreme court's recent decision in mendez involving the the two people shot in the shack in the back yard where justice ali i understand your honor you have outed me thank you very much and i so i very much hope this case does not go to the supreme court of the united states for that reason right there's no video going over that gets up there and well that the judge has just put it on the record ballot continue please continue with your argument about my government under mendez justice alito in the supreme court really reiterated in very strong terms that each fourth amendment violation  must be given its own independent and fruitful investigation and consideration so even if under and that's a precisely what was going on in mendez even if ultimately at the the a motion to dismiss based on the allegations of the complaint and the audiotapes that the court considered that that there was not sufficient evidence and that there were factual disputes that required discovery the police had to leave once he said he was ok absolutely not your honor the were they to do they were to do what the police were required to do in every every case in the second circuit in the supreme court that we look at on the issue of the applicability of the emergency aid exception which is as long as there is time to do so and the ability to do so looking at the totality of the circumstances do some basic investigation in this case what is essential to look at is what information did the police officers have at the time that they used a master key to initiate the opening the breaching of mr chamberlain door and then controlling it with a halleck and tool and the disc the only information on a motion to dismiss that that the court had to consider or the allegations of the complaint and the contents of audiotapes that were being recorded by the medical alert company but in terms of the relevancy of the of those documents from outside the pleading the court should only have been considering what information they revealed that was known to the officers particularly sergeant keith martin when he initiated the entry and the only information they had at that point was that a medical alert device had been activated that the medical alert company said they could not get a response from the person and the dispatcher noted that there had been some prior e d p or emotionally disturbed person calls at that address but but as soon as the officers arrived mr chamberlain responded to them behind his closed door and told them i am not going to let you in but i'm ok i didn't call you and the police said sorry we have to come in and see you so at least in my  persuade me i'm wrong if you do that but that's the point at which we examine what it is the officers knew and their state of mind what was in their state of mind for purposes of analyzing qualified immunity the exited circumstances those sorts of things and you then you would say i need to look at that at the point they got the key to go in at the point they called for the key where are we well the key the master key that the white plains police department apparently had to all of the part apartments in this municipal housing building unbeknownst to the tenants was dispatched from headquarters a half a block away literally almost simultaneously with the police being dispatched to the address sergeant martin who arrived a few a few very few minutes after the initial call from life  alert he immediately expressed to mr chamberlain you're going to have to open the door you're going to have to let us come in and check you out even though he later testified during his deposition that was chamberlain actually opened the door for him  after having told mr chamberlain mr chamberlain go to the door and speak to the police officers and he said i have spoken to the police officers they know i'm ok and life alert then contacted the police department and said we want to check cancel the call mr chamberlain is is not in need of assistance and they said and this was within minutes and we set out the timeline in our briefs say sorry it's too late we're going to make entry and she said you going to knock his door down is it oh no we have a key because we hear them banging on his door and this was in minutes and even if the court doesn't adopt that the in that the expressed communicated intent to make entry within minutes constitutes entry we would say conservatively that once the door was opened with the master key and the how to get into it which is a metal rod supplied by the fire department held the door open had the police controlling his door that at that point entry constituted there's a a second more extreme entry obviously at the end of the ninety minutes where they actually use a sledgehammer to bang his hinges off the door and push the door down and that's when they go in and taser being bag opened partially and controlled by the police there there is there seems to be from the audio some indication that he may have used a knife or a meat cleaver from his kitchen to try and go back to bed to bang on the haugen tool to try to remove it but it was only once the police state well started to use the sledgehammer to bring the door down where you really hear the escalation of his fear and agitation and him him essentially going into a self defense retired marine role saying i can't hold them back mr president and the first anyone who comes i may die tonight but someone's coming with me but that was much later in the incident that was not his half act at the point where the police officers began to execute entry and why don't you is calling you've reserved three minutes for rebuttal so let's plains all of the police officers other than officer crowley it is like to address the unlawful entry claim first and then try to address some of the questions that the court had regarding the beanbag gun i think one thing to understand about this claim of unlawful entry was never separately pled in the amended complaint it only occurred as a phrase in the claim for excessive force when the defendant's moved to dismiss the complaint in its entirety all of the defendants out of an abundance of caution addressed what might have been a claim for unlawful entry and the district judge also addressed that in its decision but when the plaintive defended attempted to defend that claim for unlawful entry it never made the our i meant that it's making now which is that the entry occurred with the use of the key if you look in the record it's not  appendix but in their memo of law in opposition to the motion to dismiss that's docket entry fifty two of the of the district court record and at page twenty five they don't and this is where they address the point they don't raise the question of the timing the timeline and you know the entry of the key what they say is that mr chamberlain did become increasingly agitated and delusional by the end of the hour long debacle so nobody so they're referring and trying to defend this claim to the entire incident nobody at the district court level identified the entry as when the master key was used so the argument they're making now is an argument they're making for the very first time it's not a it's not a preserve argument we wouldn't argue so what would you say the record indicates is the argument they were making before the district court the argument well if you read their brief what they're saying is that that mr chamberlain was essentially the exit insee was created by the officers and so that they have a problem you know under kentucky versus king they're saying that the officer showed up refused to listen to his request to  leave started banging on the door and created a situation where mr chamberlain was using a knife through a you know slight opening in the door and then they use that as a justification to enter the apartment they did not make the argument they're making now well they know that mr chamberlain had signed a lease this is also in the record before the district court and in the lease it said that it gave notice to the tenant that the the management company that the basically the way place housing authority was going to be you had a master key which could be used in case of emergency so when the police came in response to a life a call and they knocked on the door having been notified by the life feed company that mr chamberlain was not responding and they knocked on the door he didn't answer they were also aware that there was a history of emotionally disturbed person calls at this very apartment they  d mr chamberlain to open the door he refused but he didn't just refuse that's an important difference and i think this cohen was not entirely correct when she discussed what was available to the officers at the time that they use the key there is record evidence in front of the judge on the motion to dismiss that he was making statements that demonstrated that he was emotionally disturbed he said this is a page eight to eleven of the appendix  this is an all points bulletin no calling washington d c and later on he's make some kind of statement about the whole sea of the world over this is all recorded on the life alert before the entrance to the masterkey now the offer that you we've got to look at this from the scene the standpoint of the officers at the scene they know that the the gentleman has a life alert account the know that there's been a call from the life alert account is not an anonymous nine one one call they get to the apartment they knock on the door there's no answer they continue to knock on doors finally they get a response from him saying i don't want to let you in then he starts making comments that suggests that he's actually emotionally disturbed might be having an emergency of some kind and they also know that he's in a building where there is a master key provided to the housing authority which provides it to the police department for use in the case of emergency just on that point let me stop you for just a second i understood the record to be that the officers on the scene had to get authorization from a more superior officer in order to use that they did think they did your honor and that was in the record on the on the on the rules fifty six motion but there was a telephone call from sergeant martin to lieutenant spencer who was the tour commander there was at five sixteen am it's recorded not on the life alert life alert recording but in the dispatch recording and in it mr surgeon martin says to lieutenant spencer that mr chamberlain is making all sorts of strange and odd comments such as stop  and what's the world coming to all of this was additional information that the police had before they use the key and actually it was in that telephone call when lieutenant spencer said well we've got to get to him and then that's m to dismiss that i believe that is the proper focus but i'm i'm addressing this because it's an argument that the pellet has raised that the moment of entry needs to be the when the key occurred right but below right when this was when this was argued to  district judge cybill below this never came out there was the point of never identified the use of the key as the point in entry when the analysis of the information before the the officers should be should be the use of the key and the breaking of the door down was separated by about an hour's time a lot of things occurred during that during that hour the police officers were attempting during that entire time to talk mr chamberlain in the room yes there are no question about it because there are in this is recorded on the life alert audio that mr chamberlain is referencing names like carol and deborah and you are not deborah but carol there's another female's name and you can actually hear sergeant for trial ask mr chamberlain who is carol that's recorded on the life alert audio that that's definitely demonstrates a concern on the officers part that there was another person in the apartment and that you know just in terms of this timing that recording occurred after it seems to me first of all and again i don't have to real concern is if there's somebody else was in danger that's the usual answer and i wonder why this case if there was that concern why there isn't more made of it and because it's a stronger argument seems to me than that the guy that was drawn into th i think the answer your honor's because the claim was dismissed at the motion to dismiss stage and the evidence in front of the district court at that point well that's exactly why concern that's  to this court for the first time that the judge improperly considered evidence after the use of the key and justifying the entrance that evidence included the comments by  because your honor all of the parties agreed that the tapes the audiotapes which were referenced specifically in the complaint and then used by the a group part of the complaint that is considered essentially that's part of what the court was supposed to consider on the motion yes it was the record on the motion dismiss included the amended complaint and the recordings also those recordings were referenced in the complaint exactly your honor and it's actually beyond that because when we originally addressed the district court to move to dismiss the original complaint what the judge says i'm going to give the plaintiffs an opportunity to amend their complaint and i want you to use the audiotapes you know to inform that also referenced in the in the pleading i ask you about the fourth beanbag we were that this was yes your honor it true that mr chamberlain was incapacitated by the third or even fourth beanbags shot and perhaps he was either on the ground were not able to defend himself or rushed the doors and with the evidence there's no evidence of that at all the evidence is that after the third shot or maybe as a combination of the first three mr chamberlain briefly went down to the ground one officer officer correctly testified in his deposition that he went down on his butt with his legs out in front of him but then quickly got back up sergeant martin who fired the gun actually didn't see him go down to the ground all the way but  himself up off the ground and as he did that it turned towards the surgeon martin and that's where he was hit i mean there's no dispute that there is a mark on his right shoulder blade area that's consistent with a beanbag gun but i think that's the most plausible explanation but what's with the with the district held and i think this is absolutely correct there's no evidence in the record that after the third beanbags shot that mr chamberlain would had been disarmed or was subdued or was otherwise not posing a threat all the evidence is that after the third shot he quickly got back up he never dropped the knife and it was very very short period of time also one of the point i was like to make is that when the judge dismissed the beanbag claim on the motion to dismiss that it would have never been pled as four separate shots you know with shot pause shot pause it was just he me that he fired the beanbag so as they played it there was never this summary judgment that's right and she did and the evidence is pretty clear i think in the record that this that mr chamberlain was still a grave risk to the safety of the regarding the shooting of the beanbag gun came in in full what the judge explained to the jury was it wasn't going to be considered for the liability of surgeon martin because a claim had already been dismissed but it would be the jury was entitled to consider it in asse talking about the effect of the the beanbag guns and referencing nolan ryan and mike tyson and all and also there were there was a document evatt evidence concerning some training material of the way place police department about the force of a beanbag gun and how effective it was so that argument was presented to the jury  let's see briefly if i may just address some of the other claims less the judges want to have other questions about those first two with respect to the supervisory liability claim against a surgeon for tr version martin that that claim was for their supervision of officer karoly the jury found that officer curley didn't use excessive force that there was no constitutional violation so without an underlying violation the supervision claim should should fall should should be dismissed and the judge properly so held the district judge even if you want to look at it the claim on the merits essentially the argument is that the appellant is making is that the officers had no plan venturing what to do after they got into the door that's not true the record shows very clearly that they did have a plan their plan was to attempt to talk mr chamberlain into cooperating and opening the door they spent nearly an hour doing that then they had if that didn't work they were going to enter it enter the apartment and use non lethal force the first form of that was the taser the taser was ineffective just because one taser barb missed missed mr chamberlain by inches perhaps if both taser barbs had hit him there would have been an electrical current and he would have been incapacitated and then when the taser didn't work they used another form of non lethal force they prudently assigned only a single officer as deadly cover and only a single officer shot so there was there was a plan there and i don't think  the plaintiffs came anywhere close to the standard of heedless indifference with respect to them and i'll claim briefly your honors the survive the motion to dismiss as a single incident claim under city of canton based on an alleged failure to train he was undisputed in the district court below that white plains does train its police officers on dealing with emotionally disturbed persons and in fact the two supervisors on the scene surgeon martin and searching for trail have taken a specialized course with the new york city police department on dealing with the peace in the absence of or rather in the presence of some training that single incident claimed failed here on appeal they're saying oh it's it's not about they're trying to change it once again saying it's not about the failure to train it's really about the manual of procedure in white plains that was effective at the time they're saying that the policy on emergent asari motion to destroy persons didn't sufficiently instruct officers on how to deal with them and what to do but this theory this sort of super editor theory of minelli ability doesn't support find any support in the case law and all the case law in this area really talks back and in terms of the analysis goes back towards a failure to train and that's what the district court did and properly so the the last two issues the issues both of those are going to be reviewed by your honour's on an abuse of discretion standard the first one i know mr quinn will be addressing this as well but the first one deals with the limiting of the scope of the civil claim for still going to be one of you should deal with i'm not sure we have to hear from that's fine i'll leave that to mr quinn if just very very briefly on the medical  experts there was a question as to to treating doctors that the plaintiff wanted to call as witnesses at the trial there was a problem because they never served a proper disclosure under rule twenty six the summary that's required for treating physicians district judge sidel gave them an opportunity to adjourn the trial so they could fix that mistake they decided not to take that up take her up on that offer and when they went forward anyway so the decision not to allow those two doctors to testify were proper was a proper decision unless the court has any further questions thank you good morning your honors me please the court money is injury quinn i represent the individual named officer anthony corral he is the officer that fired the fatal shot during this incident that has never been in dispute obviously  was assigned a lethal cover by his supervisors while he was there during the course of the proceedings which ultimately led to the taking up the door throughout in the initial pleadings plaintiff's planets claim the salt but they never specified assault as having occurred when officer corralling was first assigned lethal cover and took his gun out of a sinister but the evidence i was elicited throughout the course of discovery and then even on the summary judgment level was that because he was assigned a lethal cover in the manner in which they had propped the door open with the halak until there was the concern that mr chamberlain because they didn't know his condition they didn't know that he had any history of being an e d p and they were concerned that he would pull the door open and charge and that's why they secured the door to how it ca first place and they assigned anthony corelli's lethal cover keeping in mind that they'd also made arrangements to have non lethal weapons with them it wasn't an accident that there was a beam back chalk on there that that had been spits specifically requested by the verdict hasn't been appealed and i can tell as to the use of deadly force it seems that's the only claim was that he was kind of brandishing a firearm has and it's some kind of an assault before used to farm and i'm right about that it seems that so as soon as officer crowley move removed his gun from his holster and we claim kept it in the low and ready position they had asked judge sidel to allow the jury to consider that to be the assault because he was in possession of a weapon additional so and so and so i guess i mean it's really not played well i mean that's the problem we all expected that the assault was part and parcel of the shooting which is typical in this case he pointed t stand in the hallway with the gun in the low and ready position essentially where plaintiffs then started asking judge sidel to ask the jury to consider is that when officer corralling was outside in the hall with the gun in his hand the judge side belle's denial of that request bell said i can't possibly ask the jury it'll be confusing to the jury to consider that while he was in the hallway with a gun in his hand that could be considered an assault it would have led to these sort of bizarre position of the shooting was justified pointing the gun wasn't and sold the judge denied plaintiffs out placation to allow the jury to consider that and plaintiffs are now appealing that and i would argue that taser video was played for the jury the entire hour and a half sequence in fact officer maurice lab was the first officer who arrived at the scene his testimony came in and he explained how he was the first to approach the door and then the sequence of events every officer who was the the medical testimony of the medical examiner said it couldn't have been on the ground because the blood is eight to ten feet away in the living room and if he had been shot while he was on the ground he couldn't have got to the living room because he would have been paralyzed he wouldn't have the physical perhaps capacity to move from the hallway into the living room and that's where the bleeding occur and that if he had been shot where plaintiffs were arguing throughout this entire trial which was in the area of the bullet hole in the pillar in the hallway this is the hallway inside the apart this is the hallway inside the apartment then there would have been blood there because he would have been there because he couldn't have moved anywhere else so you know this theory that you know he was on a stomach he couldn't  p up and you know they tried to introduce the medical records as well which goes to just a lot resume his other argument they wanted to introduce the v a records indicating that mr chamberlain's had a diagnosis of c we don't know if they would have been consistent plan of sciri that because of a c o p d in his age he was incapable of popping up but what we do know what's in the record all of the evidence contradicts that because you can hear mr chamberlain on the audio tapes on the life flirting on the video from the taser speaking for an hour yelling screaming he's never out of breath in never sounds tired we have videotape of the steel door they have fire doors in this particular building the store is way somewhere in the neighborhood of one hundred one hundred fifty pounds when that door was taken off the hinges it fell on to mr chambers he takes his left arm and throws that door to the left lands side of the floor which indicates an extraordinarily strong and robust so you know this argument that he was incapable of popping up off the ground was you know never testified by anybody they still don't know if they were going to call a doctor whether or not they would have agreed with that assessment simply because of the diagnosis of c e o p d but finally was contradicted by all the evidence and record the only evidence that was introduced in the record is that at the moment my client fired you have time for about my top talk very fast well i'd like to in a bullet point fashion address some of the points made here and then try and put this appeal in a slightly larger caught more important context first of all the complaint did address in its content the initial the use of the masterkey as a fourth amendment violation yes there was an omission in the caption of the first claim but in the body of the the claim it was clearly delineated plus i should point out that an initial a defendant was the municipal housing authority who was sued for there giving the key without any notice to the to the tenants i'm giving the master key with no restrictions to the police department in the first  of course your honour's will be the ultimate arbiters i read kentucky versus king somewhat different than defendant i think kentucky v king says that there can be situations where police can create through their initial actions if there is an initial fourth amendment violation then a subsequent act could be deemed to have a risen from that initial violation and so here it's  important to us because when you listen to mr chamberlain and he's not alive but his voice can still speak to you through the through those recordings that you hear a progression in his af act as these ninety minutes unfold and there is a distinct change in his demeanor and in and in his aff act starting from when his door is breached against his expressed wishes by the masterkey and held open by the halligan tool and so it's disputing your adversary indicates that in the least document that covered mr chamberlain's apartment there is a reference to or an acknowledgement of the fact that that key exists and it can be used in  jeans is that accurate or not accurate in your view it is in accurately accurate in the sense that as with most lease provisions are many lease provisions the land there is the light the municipal housing authority is the landlord says that they can have access to your apartment if there is an emergency if there is a leak if there is a fire if there is someone clearly in distress that needs to be gotten to that's arguably one of those circumstances however here the police department had no instructions as to using the key the master key on a medical alert call and in fact the testimony of the officers was that the only information they had is when to use the key was because they they'd woods would patrol the housing authority and there were sometimes empty apartments where people would come in and use drugs and do other and they wanted to be able to have a key for apartments that were vacant this this i think that that the characterization of the key being used with unbridled authority by the police department in this sort of circumstance is far from clear from the  lease terms of the the medical testimony i'm not going to get into the to whatever deficiencies there were there was argument back and forth in terms of disclosure on the on the two treating physicians what i would ask this court to focus on though is one very important moment during the trial where the medical examiner was who performed the autopsy was on the stand and and was asked by plaintiff's counsel to explain a term that was contained in the autopsy report findings the autopsy report findings showed that mr chamberlain at the time of his death suffered from palm unary emphysema and medical examiner was asked the question what is asked what is emphysema and there was an objection to her answering that question which was sustained by the court even though other terms that were contained in the autopsy report were were allowed to be explained by the medical examiner now we're talking here about a preponderance of the evidence and the the court you'll see it in her rulings below is precluding any mention of mr chamberlain physical conditions because you said these two physicians to give you more time if you want to do it that would happen yes it is yes it is your take it from what you've just said that you were not counsel during the trial i was sorry your i meant to say in the beginning i was one of the counsel below i was one of the counsel below now in terms of supervisory liability quick point on that if the court reinstate institutes the unlawful entry claim and the excessive force claim against officer martin then we think that supervisory liability will will flow from that and although we haven't referred to it in in our papers i see i must reference tara best c v to rare ro analysis of supervisory liability for failure to have a plan and failure to execute a plan and i reference that case with some trepidation knowing that its author is is he is here and i may if i go by myself for  nusual grounds here most monella claims are your classic failure to train claims arising from the single incident theory of canton ohio in those claims there is a policy on paper the police department the city has the common sense to have a policy on paper and the claim is new is usually but they fail to train their officers on the policy and we're deliberately indifferent here we have the reverse we have two supervisors and i should just note that in looking at the reasonable officer standards for for some of these decisions particularly decision to enter the reasonable officer standard should take into effect sergeant martin touting very proudly his e s u training his e d p training his special tactics training when considering what would a reasonable officer with his training and experience do but here we have two supervisors who who went to john jay's meant mentally disturbed person's situation training and completely failed to apply know better based on my experience how to handle these people the fact that they say don't bang on the door don't show weapons don't don't make up things to them that's not you know they should just leave it to me i know how to handle these situations so those are the main the main and also just i think it's really important to to really emphasize what this court said in no bear which is where the person who is most likely to be able to refute or challenge the credibility of the police officers who are alleged to have violated the fourth amendment is silenced maybe dead or in or in one case was was brain damaged and can communicate that the court below and this is particularly important given what happened on the motion to dismiss that the court below must take extra care to draw all reasonable inferences  that in terms of the plaintiff's view of things and b b provide a little more latitude and provide in terms of the sort of circumstantial evidence that could support the plaintiffs the plaintiffs  position and i'd just like to to end with this thought a few weeks ago i was on a panel at cardoza law school our younger daughter is a student there and one of my colleagues who is a civil rights attorney doing a lot of police litigation said to that to this point these audiences first year law student i'm now sorry that i chose this path to practice law because because of graham v connor civil rights plaintiffs and police cases cannot get a fair day in court and i couldn't let stand that sort of cynicism or disillusionment to be unchecked for these first year law student and so i said the words of graham v connor are not the problem grampy connor in its construction tries to balance fairness to police officers for the difficult job that they have to do we don't use twenty twenty hindsight we understand that they're sometimes dealing with rapidly evolving situations it can be a dangerous job but the balance of granby conner is supposed to be that the the reasonableness of their actions for fourth amendment purposes is judged by the totality of the circumstances and at the end of the day in this case we believe that the main problem was the district court judge heard the sound of a man's voice on a on an audiotape and drew certain conclusions as to what was it unfolding without allowing any discovery into what really did on fold before she dismissed key claims in this case and in that sense invading the province of the jury  supposed to be the conscience of the community who is collective experience and collective wisdom analyzes the totality of the circumstances to decide reasonableness and so that's really what we're asking on behalf of kenneth chamberlain sr is to allow members of his community of the community to hear his voice and to look at the evidence and decide if whether or not what happened to him on that morning that resulted in his his death was a reasonable exercise of the police apart the police department's awesome of the wordy thank you very much thank you very much ms gone mr mr quinn thank you as well very helpful arguments for the bench and as you can tell we're all wrestling with this and continuing to wrestle with this we'll reserve decision and get back to you as soon as we can thank the next case on for argument is like santa naveen you versus holding capital group and we'll take a minute to start and let the courtroom those who have been attending the first argument exit the court room but come on up and get ready to argue please morning your honor may it please the court room our van on behalf of the appellant ten thirty two ten thirty four lexington avenue ltd while we have many arguments in our briefs for the purposes this morning your honor without abandoning in any way those arguments i would like to focus on the issue of what constitutes misconduct as that term is used in rule six the b three and show the court why what happened in this case was misconduct and therefore the rulings of the court below should be reversed we're dealing here with a chapter seven trustee he serves as i fight do sherry to the estate appellant my client was the largest unsecured creditor of this estate and i want the court to know that the settlement which was an issue in the court below the funds of that settlement had been held in escrow till today so that were this court to agree with our position that the k should be reversed the parties can be restored to their original position without any prejudice to anybody was there any suggestion of collusion between holdings h g c and a trustee i'm going to address that your honor because i think the facts may suggest that that's one of the points i do have but if i could be deferred for just a moment  now the salient facts in this case are under spirited one it was an adversary proceeding commenced by the us trustee read chapter seven trustee two no answer was ever interposed in the complaint to the complaint three the chapter seven trustee took no formal discovery for he took some informal discovery and then promptly entered into an agreement to settle the claim for one hundred five thousand dollars and then he made a motion to approve the claim and ultimately both the bankruptcy court and the united states district court confirmed that settlement were these arguments made to the bankruptcy court and the district court in opposition to its approval of the settlement yes your honor they were absolutely were both levels  about what the answer is no that was the contention of my client but our position is that we were impeded in making that present to that presentation and documenting it for the very reason that when we got involved in that aspect of the case and we served a proper discovery notice on the chapter seven trustee admittedly he failed to produce krrish critical and crucial documents to my client and so we were absolutely impeded in establishing that the settlement was not a fair and reasonable settlement and in fact judge grossman specifically stated on the record that in his mind the settlement met the lowest standard for approval the lowest standard for approval and that was because he didn't have the salient facts before him now but just so i'm clear and i may not have heard you fully in response to judge question yes the argument you were able to articulate and argument to the backup c judge that the settlement was unfair but you you told the judge we need more information in order to feel that didn't have the sufficient information to document out claim that the settlement was not fair so you didn't make it or so you made it but said we don't have sufficient evidence they did but we were impeded in making our own record that is the point now the chapter seven trustee admitted on the record in the courts below both before the bankruptcy court and before judge kaplan that he did not handle the response to our demand for document production himself number one number two he had physical possession of these critical documents at the time that the ban was served upon him and number three had he handled the response himself those three documents would have been produced would have been produced by him so he completely acknowledged the fact that those documents were essential documents we were entitled to them we didn't have them and his statement to the to the court below was my counsel quotes simply didn't produce and quote those documents that's all he could say about it my counsel simply did not produce those documents now i'd like to point out to the court that our courts recognize that a standard of conduct a standard of care can vary depending upon the person involved and i will illustrate with a medical malpractise case in a medical malpractise case against the general practitioner he might be found to observe to have observed the proper standard of care for what he did a specialist might be found for the exact same care to have perpetrated by practice because he's held to a much higher standard based upon his knowledge and his skill and that makes a lot of sense it makes a lot of sense because when an individual goes to a g p you don't expect the same standard of care as you do from a specialist who will agree with you that it makes sense would you continue the analogies so i got in the case of this chapter seven trustee who was an experienced attorney who is an experienced chapter seven trustee when my coins got their response back without these three critical documents they had no reason to suspect that there were any documents omitted because given the exterior the stature of this man and we did know that he wasn't personally involved in the response they expected that they had everything they should have received and they didn't my coin offered one hundred thirty thousand dollars and what my client would have bought for that hundred thirty thousand dollars was the very cause of action which was being settled my coins at that point in time believed it had a lot more value and so my client was willing to pay one hundred thirty thousand dollars to the estate to buy the course of action to prosecuted against the defendants and then x actually leads me your honor to respond now to your question which is to i think there may have been some form of collusion and i think the facts of this case a just that for a number of reasons number one as an experienced attorney and trustee i would as i would  expect it the chapter seven trustee to demand an answer and to take formal discovery which he did not do he quickly jumped at a one hundred five thousand dollar offer when he knew at a minimum there was a one hundred fifty thousand dollars licensing fee paid there were other licensing fees which he never looked into and and they were monthly royalty paid payments made number two why didn't he take the hundred thirty thousand dollar offer it was twenty five thousand dollars more for the estate he would be out of the case my client would prosecute the case against the defendants i think the chapter seven trustee was fearful that my client would prevail in prison in pursuing the action and then he would be personally and professionally embarrassed so he had no choice at that point in time but to say no to the better economic offer for the trip for the for the creditors of the estate judge and that's why i do think there's an inference of possible collusion here w hat if any delay was there between sort of the discussion of one hundred five thousand dollars and one hundred thirty thousand dollars off when they went before judge grossman in the bankruptcy court for the original hearing judge grossman said one or two people took and so after one hundred five thousand dollars settlement was presented to the bankruptcy court one hundred thirty thousand dollars settlement as i understand i was not part of it but as i understand it was probably four to eight weeks of  d max for that time to certainly before they came back to the bankruptcy court for further proceedings on the offer of settlement on the well the offer of settlement that was approved one o five correct  now the one thing that i do want to emphasize here is that when we were in the court below the court below shifted the burden of his rulings and you see it on the transcript he said why couldn't your client have taken depositions your client didn't do any discovery he said to me when your client got the response from the chapter seven trustee he made no motion to the court below to compel production of additional documents my response to that is the quote below shifted the burden of responsibility from the chapter seven trustee to my calling my client had no reason at the time to believe he hadn't gotten all of the pertinent documents and as far as discovery goes it was the chapter seven trustee who commenced the case he was responsible he represents he is that if i do sherry for the estate it was his burden to take depositions he dropped the ball not my client now because the trustee was there are sexually protecting your client's interest exactly correct he's appointed by the office of the u s trustee to service the trustee in a chapter seven case it's his job to marshal all of the assets and to make my day where there are other unsecured that are also being creditor we're we're approaching this from two different directions with respect to the relief that we're asking from this court i don't believe this court has ever ruled as to i'm going to point out your red light is on ok i'll be very very few up please and we would like to hear this but just thank you your honor either this court should rule that where a chapter seven experience stress the fails to produce documents that in itself is misconduct universally i don't believe this co ever ruled on that and that the party who sustains that misconduct the effects of that misconduct does not have to make any further showing like how i was impaired even though i've shown you that we were here alternatively the court need not go that far alternatively the court can simply rule that in the circumstances of this particular case we established misconduct and therefore the reversal should take place i realize red light is on thank you your honor and you've reserved two minutes for rebuttal four motion that the nine hundred nineteen motion was not what they were challenging and that they waived it so the arguments today about reasonableness and the settlement will waive by appellant below and should not be heard by this panel now on the issue of the misconduct there is simply no evidence and i want to i think what's critical is to focus on the three documents that a keeps talking about not one of those three documents showed any payments to the defendants in the adversary proceeding they had nothing to do with holdings they had nothing to do with f p g what they had to do with was a license agreement with management a different entity for whom there was already a settlement with which appellants had objected to the settlement that a settlement was approved over their objection and they never appealed that that was that was what the documents showed they showed payments to management not to the defendants in the adversary proceeding the settlement was perfectly reasonable trustee had eight courses of action in the adversary proceeding at the one thousand hearing he stated that there was no value to the cause of action which was the only one that they're appealing because he had no evidence that holdings had in fact received any payments to this day there was still no evidence that holdings received any payments the value was in the first five courses of action which was seeking to set of side preference transfers to holdings and h c g those transfers totaled approximately two hundred and thirty five thousand dollars and for that the trustee settled at one hundred and five thousand there was nothing there that was withheld there was no court but it's still clearly erroneous the factual findings legal findings which court of the of the bankruptcy court rather just i mean quite frankly either one here the district court agreed with the bankruptcy court that it was that there was no clearly erroneous finding by the bankruptcy court on conduct by the trustee and went so far as to himself i believe find that there was no misconduct by the trustee and the song a record that was created in the district court based on the record that was created in the original bankruptcy court i mean based on the record in the bankruptcy court and also based on the argument on the ninety twenty four motion in the district court because you must remember on top of the fact that these documents did not relate to the cause of action at issue because they didn't show any monies to the actual defendants in the adversary proceeding in addition what appellant keeps voiding mentioning is that they had information about payments to management the defendant not in the adversary proceeding but in the prior proceeding that had been settled showing that in fact they knew in two thousand and twelve two years before the motion on the one hundred nineteen that management was a party to license agreements and had received clearly had received funds they did not to the tune of one hundred no that had nothing to do with holdings this was management this was pay our management not a party to this proceeding they are made what the trustees of course of action was was that that holdings as a fifty percent owner of management must have been unjustly in which basically a veil piercing theory the courts below have both found there was no evidence for passing that was submitted and that the only evidence was that management receive funds but that is not what's at issue here the issue is where the holdings was unjustly enrich not whether management management was settled out orally of them holdings and was never appealed and it is clear that appellant had the information at the ninety nine thousand hearing in november in october of two thousand and seven zero inventor of two thousand and fourteen they raised the license agreements that management was a party to but that was not holdings at the ninety twenty four hearing in front of the district court judge they admitted that they knew about payments earlier than the payments that were at issue  that the documents showed payments in two thousand and seven they admitted that they knew about payments that management had received in two thousand and eight and two thousand and nine and yet they had not raised those payments to the bankruptcy court at the time of the settlement they had not taken any discovery and the courts below i want to raise this issue that the courts below somehow shifted the burden the quotes below did not shift the burden there was no burden on the trustee there was necessary not necessarily a burden on the appellant either with the quotes below found though was that the appellant couldn't come forward with a sixty two or sixty three claim when the appellant had information and chose to forgo any right to take discovery the trustee had an exchange of information before settling was satisfied their holdings had was well them prosecute on your behalf this claim against holdings which the trustee did not want to do more importantly and one of the reasons that the bankruptcy court denied this was when the bankruptcy court found that the bankruptcy court said that one of his concerns was the trustee settlement had holdings which had a seven hundred twenty thousand dollars claim against the debt as a state which there was a dispute as to whether that claim was secured unsecured certainly if it was secured it would have had priority but there was apparently a dispute everyone called it apparently secured so it's unclear because it was never developed because holdings was willing to waive that claim which it claim was secured seven hundred twenty thousand dollars claim waiving it as part of the settlement it was not going to be waived if the if the appellant bought the claim from the trustee and then it would have had to be fought as to whether or not that seven hundred twenty thousand dollars claim was part of the estate and the judge was concerned the bankruptcy court judge was concerned because they were basically the appellant's idea was that they were going to treat holdings differently as a creditor and not guarantee them the same a proportion of a payout as they would guarantee all the other creditors and the court said how do you bifurcate the unsecured creditors and pay one group and pay one to one in another group something else and that was a major concern and the response of appellants counsel at the time was i would have to speak with my client so he came to the one thousand hearing not even prepared to treat a credit of the same as all the other creditors this was a major reason that the court found that that the settlement offer was not acceptable we also would argue that that has been waived that that the appellant admitted at the ninety twenty four hearing before the bankruptcy court that they had waived in nineteen nineteen motion objections and that therefore that is not actually properly on appeal to the court because once way below they can't read now at the second circuit they waived it they admitted they waived it to the district  court i think that they also are making this argument really for the first time on appeal that a different standard applies because a fiduciary is involved and i think it's first of all they argue below merely that that there was no law as to whether or not under sixty will sixty three they had to show that the contract prevented the moving party from fully and fairly presenting its case but obviously the law in the circuit is quite clear there was no decision in the circuit that supports appellants argument that it's not the correct stand it they haven't cited any legal precedent in any federal court to support a heightened standard for due sherry because there is none in fact to the contrary at least two other circuit courts in cases involved allege trustee fraud not even misconduct before i have applied the same standard as they apply in other sixty three cases and be happy to provide those cases because they really didn't make that argument clear until they reply brief so we didn't address it in our original briefs wanted to send us a twenty year jury letter ok just giving us the names of the cases no absolutely your honor we will do that this court and this court has held that even in cases of fraud and that's the phillips case that is cited and fought on the court which is the state st case which was also cited in our briefs the same sixty three standard applies of having a fully unfairly having to have interfered with the ability to fully and fairly present your case so fraud fraud on the court and all the circumstances the second circuit is held you still have to show you were your ability to fully and fairly present your case was interfered with and there's no basis to find that a different standard applies and as i mentioned that was waived by the appellant below i note that in their apply brief they cite to a section of their brief to the bankruptcy court judge to claim that it wasn't waive but that section the brief specifically says the general rule doesn't issue and we would argue that's exactly the situation here it's unrelated to the order at issue would require relief from the order that interpretation has no basis in the war and requires the court to ignore the public policy which favors finalmente in judgment and under the full under the interference fully and fairly present your case standard appellant can't meet that they cannot show that because the three documents at issue a only showed payments to management a distinct corporate entity from holdings which was the party to the adversary proceeding and it doesn't and moreover they had similar information about payments to management two years earlier they admitted that to the district court they further admitted to the district court that had they exercise due diligence they would have had these documents earlier those admissions are fatal to their case and i note that at the one thousand hearing they actually referenced license agreements that management had so they cannot claim that there was anything that the trustee hid from them that somehow vented them from fully and fairly presenting their case there was no payments to holdings and and all know that the district as a district court held in a prior case the catskill case also cited an op reeves there was no interference if the evidence is cumulative in significant or marginal relevance that's exactly what's here just because the trustee agreed that the document should have been produced does not mean that they were relevant to the motion there's certainly a different standard for what should be produced was in response to request then what is actually relevant to the motion and that and the appellant has been conflating those two arguments i would just like to say because they spend so much time and i know my time is up and if i could just have that in their papers  a lot of time on the trustee statement of the one thousand nine hundred hearing that his quote his information is that those payments would not made and i want to just point out the question and he was answering at the time and the question was given in response to a question concerning the value of the eighth cause of action and the eighth course of action allege that holdings had been unjustly enriched so in answer that there was no payments was clearly a reference to holdings and that's how the bankruptcy court interpreted the answer but even if you could interpret it as to mean management there would have been no reliance by the appellant because they knew management had received payments and they known it since two thousand and twelve when management gave them that information so that couldn't have been any thing about the trustee statement the quotes below found it was a misleading they found it was an accurate statement first of all but it couldn't have been misleading under any circumstance and just very briefly and sixty two more or less the same reasons the sixty three this was not new evidence they knew about management it didn't relate to holdings and their admission at the district court that with due diligence they could have uncovered it themselves is evidence that they cannot meet the sixty to stand it  there's no dispute as to all the things i mentioned about the chapter seven trustee and what he didn't do he never took depositions you never pursued discovery he quickly ran into a settlement and tried to get it through that's undisputed there was a  transfer made the monies went into the debtors account and in fact  out it's in it's inexcusable it just doesn't tie in and with respect to the purchase of the cause of action if my client purchased the cause of action it wasn't that he was going to pursue it on behalf of the trustee he was going to buy and own the course of action the trustee and the estate were out of the case they were selling a cause of action for one hundred thirty thousand dollars if my client go zippo or five hundred thousand dollars it would belong to my client that's what he was buying and that's what is so important about this they the unfortunately we keep hearing presentations that don't accord with the facts what was there a waiver of some claims by the other party in the settlement they was your honor but again if they participated in that excellent question if they participated in the distribution of one hundred thirty that would only have hurt my coin my point was prepared to take that risk because we were the largest creditor the other creditors amount would rather nominal so yes the other unsecured credit is where i had to give a portion of the money up because of that settlement but they would be one hundred thirty being distributed not one hundred by they would still have come out ahead or another twenty five thousand sack liana thank you very much thank you both will reserve decision thousand and eleven he was driving a taxi cab yellow cab he was heading westbound on west fifty seventh street he went through the intersection of fifty seventh street and fifth avenue he had a passenger in his car who wanted to get out  defendant timothy crouse was a police officer on duty during traffic control that morning he instructed my client not the discharges passenger in to proceed down the block as my client proceeded down the block and slowed to merge into the lane of traffic his passenger who wanted to get out of the cab began to get a cab my client reasonably stopped the cab to let her out so she wouldn't get hurt officer crouse a cross approached the cab from the rear passenger side and directed him to move in to comply with his original instruction which was to keep on driving because he was blocking traffic and not just charges passengers i don't think so i think what he said was basically moved but the passenger was getting out of the cab an officer crosses testified that essentially the passenger was out of the cab when he got there when he and she in the testimony from my client was that she threw money down on the seat and just started getting out when he slowed to merge she stopped this started getting out and i just jump ahead to the fair you know aspect of this short season that when judge coached at the case and reopened consideration summary judgment was just going to be a qualified immunity and your papers look like that from both sides right were you surprised when she revisited probable cause for the malicious prosecution and i just don't agree with your interpretation of the statute and you haven't raised a genuine dispute material fact that i was quite surprised riginal e what happened was in the motions in limine which were submitted while the case was still assigned the judge swaim  defense counsel raised this issue of qualified immunity and they they framed it as kind of a weird hybrid of a motion for reconsideration which is difficult because it was plainly untimely and they sort of hoops can we make this now sort of motion for qualified immunity but you didn't object to that oh no we did we absolutely in general as we look to to looking at qualified immunity i didn't see that in the discussion at the status conference you seem to go along with that i didn't think i am trying to remember i don't know your honor i'll defer to whatever the record says what i do is a good thing to do what i what i would what i would say is in our motion in limine a response i absolutely objected to it as untimely and judge code i believe at the outset of the status conference said it was not a proper motion for reconsideration it was untimely it said or judge coach then said in sum and substance that she wasn't convinced the judge swain had properly parsed the language of the penal law statute one twenty five subsection three and so she would hear argument on that and so you defendant what i consider their second summary judgment motion the motion before judge coat as opposed to the prior one so judge coat did not rule based on any of the arguments in the motion in limine a she essentially that invites this the defendant re brief no new fifty six one statement instead they rely entirely on the fact and you can see it in the special appendix of supplemental appendix page eight in the defendant's brief to judge coat they quote specifically from the facts as outlined by judge swain these are the facts of the case so we come back to this sort of procedural posture which is qualified immunity hasn't really been addressed and now you have this argument and i do think the defendants didn't simply make a qualified immunity argument they argued full throated against both the mouth process and the fair trial argument and i do think that's how it was alternately argued and i don't know how asking and trying to figure out what judge code and what judge point disagreed about and it seems as if judge cote was saying the misrepresentation in the statement about being half inside that is irrelevant because are all the statute requires his intent to interfere with a police officer and doesn't and you don't need to intend hurting that police officer and so that whether he was just had his arm in the cab or the whole half his body was in the cab doesn't really matter but it seemed like from the beginning your your view was he didn't intend to interfere with with the police officer either i mean in other words it's relevant to whether he would have noticed the police officer in the cab of his half way in the cab and so maybe he's lying about i didn't want to interfere with the police officer but you're your view seems to be he never intended to interfere either right absolutely judge and i think in this case it's the same evidence in other words judge judge wayne and this is where judge co did not do what i would you would normally i think in my limited experience with this expect when you are essentially revers ing the district court's prior order which is to say either these are the new facts or this is the change in the law or the prior decision was so erroneous as to really require an intervention and that doesn't happen there's an acknowledgement that the prior order and then simply a kind of didn't know ruling without any acknowledgement of the prior holding but in actuality judge swain was very clear in her ruling she had city's interpretation of the statute which is i think correctly that assault under one twenty five section three requires an intent to interfere that one way or another result in a reading from defendants is what should swing gave them and exactly what judge code says should be applied so i i don't know i think judge codes judge code adopted the same interpretation is judge swain but then comes out differently and i would say iranian slee i'm almost out of time if i could just have an extra minute or two on this point are out of time but yes you may have an extra minute thank you thank you your honor  in this case you have a officer telling a cab driver to drive the cab driver drives the officer i have still yet to figure out in my head conclusively how gets snagged in the rear window of the car and is pulled along he runs alongside the car as you can see in the video and then gets on untangled tumbles to the ground and is injured my client tries to the corner stops a red like it's arrested the the fundamental question is did my client have any idea was it reasonable for them to believe my client had an idea that he was in the car now let me just get rid of the false arrest claim really quickly with judge wayne said was because of the discharge of the passenger there was independent probable cause to arrest for the violation of some traffic law whatever my personal thoughts are about that extension of devon pak i didn't want to raise that issue here  secondarily she found that it least based on first glance first observations maybe there was p c for the arrest i think that's mistaken but given the other reason for getting rid of the false arrest claim i didn't raise it but the fundamental issue here is what was my client aware that the officer was there that's evidence both of intent to interfere and intent to injure at the same time they're the same thing if he doesn't know that the officers attached to the car then he thinks he's complying he thinks he's doing exactly what he was told to do and there's no mens rea if he thinks the officers in the car then he knows he's interfering with him and of course any reasonable adult should conclude that he's putting this person it real risk of injury so it's the same it happens to be the same thing because of the fact of the case it just by statute both judges agreed as to what it was and what i would say in closing on that point your hon your you agree that it's gone after the supreme court's decision and well no judge i don't i don't and i don't think this is the case you know men well came down after i believe the decision from judge code issued it really was not it was presented in the scope of a paragraph or so by defendants i don't i'm not comfortable arguing that it at full length but i would say men if the supreme court intended to get rid of the fair trial claim it would have done so and i don't think that was the issue before demand well what you have is ok so that's that's how i would leave that your honor and your reserve three minutes from yes and i'll raise my or other points at that time good morning your honour's is that podium ok for you or would you like it up a little bit i think it's fine ok very good i just want to start briefly by responding to the notice question that your honour's asked my adversary it's clear going back to pages thirty six and thirty seven of the joint appendix that at the status conference before judge cote the parties discussed at length the question of how the underlying penal statute should be constructed judge could also made clear that it was unclear at that time whether the parties had really spent enough time parsing that issue and whether judge twain's two thousand and six opinion had actually parsed that issue the court was perplexed as to how to instruct a jury or how to fashion jury instructions and how to respond to certain motions in limine a that both sides issues regarding motions in limine a that both sides had raised because the construction of that penal law provision remains unclear so the court and i don't want to spend my time finding the exact reference just just yet but the court made clear that the parties could either allow judge code to go back and review  judgment briefing that it already happened and stand on those papers or submit additional documents and because only on the issue of immunity on the issue of qualified immunity and the proper construction of intent under the law one twenty five that's correct and so again just two so the question about notice i think is answered by that extensive discussion that the court was going to potentially reconsider some aspects of the priority or and certainly mr so narrow had an opportunity and did take the opportunity to brief any issue that he wanted to raise but turning and again there is no reason why since judge cote correct was correcting an error in the prior decision with respect to the malicious prosecution claim the fair trial claims there's no reason why judge code needed to allow an error to stand in that error and this is going to another question that your honour's posed to my adversary was where did the judges actually disagree and the and sixteen opinion found that there was probable cause for the mr summers arrest in connection with a traffic violation it did find that but judge swain went on to also find that there was probable cause for his arrest or at least arguable probable cause with respect to the second degree assault charge and it's in two parts of that page is twenty four and twenty five of the joint appendix as well as page twenty seven when the court says again that it could not find as a matter of  the probable cause was lacking for the prosecution on this assault charge so once we're in the in the zone of having at least arguable probable cause for the assault mr summer had the burden of coming forward with some proof that in those twelve hours between the time of this dramatic dragging incident and the time that officer loom or signed their criminal complaint that in that time period somehow those officers discovered an intervening fact that prove the groundless nature of the second degree assault charge and he failed to do so for three reasons first instead of offering any proof he offered speculation about what was in everyone's mind the officers must have thought that this wasn't enough was a statement of a sworn statement or said rouse told him and he didn't observe this himself he said this is what was told me by cross we file that statement with the district attorney's office limor told him i was halfway in the cab cross never said he saw that and then later on and so that's where the malicious prosecution comes in as opposed to false arrest because it's after the arrest and then later on it seems to be undisputed that that was not true even cross said that's not true again  respectfully your honor i don't know just going back the statement that mr solis pointed to was a very brief and general description one of three comments that officer the more made and i just want to know them in is informed by officer crouse the following three things the better drove and that half of his body was in the taxi marie never never observed them saw them that may be true your honor but i don't think it it it's material here because the number one concern of the court was is this false and again taken in context a colo colloquial expression like half of the half of crosses body was in a taxi he was hanging out of the taxi it unable to get out and then he fell out and rolled onto the ground causing injuries taken in total that is not demonstrably false in that position it's not true twenty in his deposition instruction cross acknowledged it was not true that half his body was caught in the taxi in the video to show the video is there different parts of officer across his body that are stuck in the taxi and as he's dragged along at one point it seems to be part of his arm his i believe his right arm and he has to dislodge himself but again that is reason number one because there is tremendous amount of speculation about what was in the officer's mind and what the officer may have been thinking about in those twelve hours not a fact again that was discovered during that time reason to this court was clear in do for to show that fine tuned assessments about what  evidence fine tune assessments of evidence that might be relevant at trial are irrelevant when we're looking at a question of probable cause and i raise that here because mr summers argument rises and falls on the contention that the officers must have believed that some lesser portion of of across his body that that evidence would not have been enough to sustain the charge and that is not the kind of fine tuned assessment that's relevant here and the third and i think very important is that nothing whether it was an arm or a pinky nothing here could show that the second degree assault charge was groundless now it may be that mr stone row has or would have had had this case really gone to a full trial a number of issues to raise in his defense with regard to mens rea a did he truly mean to interfere with officer cross duties but again going right on down to or up to  proceeding but again we're looking here both whether there was probable cause which both judges found and whether there was some fact discovered to vitiate probable cause the objective facts are what control in objective facts facts as viewed from the position of the officers that mr stoller was told not to stop this taxi that he did stop this taxi that an officer approached him after that violation communicated something it may very well be that mr sewell misunderstood that communication but again that's that's subjective in speculation about what was in mr summers mine objectively he was signalled to move his car he drove away at a faster speed he initially described he described his initial speed as his crawling and later it is deposition admitted that he drove away faster so he drove away faster and in the process injured an officer any object any reasonable officer looking at those objective facts could find that the second degree assault  charge could be sustained against him and i see my time is running out so i want to briefly just turn to denial of a fair trial this court could affirm on qualified immunity grounds as we believe to the court below and as this court has made clear including in due for recently qualified immunity protects all but plainly incompetent and knowing violations of the law and using a colloquial expression perhaps imprecise is not the kind of unconstitutional falsehood that would make render imprecise and colloquial term like half in is not a constitutional falsehood but this court can also squarely affirm on the grounds that articulated in the opinion on appeal and the district court correctly found that the amount of the officers body that was struck in the taxi was not likely to influence a jury given the intent there was requests intent to interfere that really is the subject of the underlying criminal charge and i just wa very quickly note that again we do not believe that this is demonstrably false and certainly given the way that the court has constructed the requirements for proving fabrication in seville no in fact piano mr summers not his burden of  met his burden of proving that it's false and fabricated and the final point is about malice because since we are in the zone of having probable cause or at least arguable probable cause here for  yes i say this only for this reason judge which is my client says when the officer comes to his car that he bangs on the roof of the car and my client hears that as having already been told by the officer a few seconds earlier get going that to him means go because you know he is in the second lane of traffic on west fifty seventh street at ten or eleven in the morning so what your client thinks it would you agree that what your client thinks is not relevant to whether there was probable cause to arrest him at the time for an observed violation i would say with none of the parties thought was particularly the subject of intent the subjective thoughts of the officers isn't important peter your honor i would say it's the objective facts as they appeared not so we throw out factually has to be assumed to be true in resolving a summary judgment motion because that's my client's testimony as to what happened not his interpretation of what it meant but whether or not that's factually the objective facts to be assumed for the purpose of disposing of the motion i just want to talk with this very quickly this qualified immunity thing for a fair trial the fundamental issue here is whether or not the officers misled or fabricated evidence misstated evidence to the da knowingly knowingly being the operative word here and i don't see how really in a fair trial context you get qualified immunity if you're knowingly misleading a prosecutor and  but officer crouse has stated his deposition that he also spoke with prosecutors and and gave good consistent story to them my point here is that if if in fact there's evidence that an officer is misleading or being incomplete or whatever terminology you want with a prosecutor no reasonable police officer can think that sort of conduct is reasonable which is different than saying i thought what i saw was reasonable that's a that goes to liability but to qualified immunity the idea that what you're doing even if it's a constitutional violation you could reasonably think was ok well nobody could think it was ok to mislead a prosecutor i mean that who would that's just not a reasonable thing oh it comes down to really whether half in my arm was caught is misleading well distinction between those two was misleading well i think if you look at the i mean do i have yes the  in theory yes in theory they do and and it's not just that this is what he told the prosecutors is that the prosecutors put it in the criminal complaint precisely because this description of somebody who half in the cab creates a visual impression where my client had to know right that that would satisfy the mens rea whether it's to interfere or to injure either way my client no reasonable person could be driving a cab with a human being stuck half in the cab and not no the idea that that's just some conversational thing in a book that's just that's not a reasonable way to avoid the words you choose to use when you describe things to prosecutors and then sign off yourself on a criminal complaint i don't think that's about the fence were appealing from a grant of dismissal under rule twelve b six and the district court cam alleges that it owns it's the district court decided on the basis of standings that is correct your honor the court found that there were a sickly the copyrights and without all of them a didn't have standing to bring the suit well more specifically you're right that's generally true but more specifically what we're talking about is that we didn't have exclusive rights to prepare derivative works because that's the alleged infringing conduct  and the agreement in one thousand nine hundred sixty six between the italian parties use some language about all rights that it's very very broad it also had an explicit grant of derivative work rights for adaptations inherently not clear from the face of the document itself it's a grant of all rights to exploit the work and use the work but it reserved to the author your rights such as your rights will not be prejudiced and it never says what your rights are and i think as we argue in our papers your honor your rights here i believe don't apply to the rights to exploit the works because he's granted those all rights but they were because you have the right to get paid under the contract and his moral rights not to have his work about the ride moral rights moral rights yes and the explicit grant of exclusive rights to make derivative works specifically reserves only his moral rights and not his other rights his other the right either to be have your name associated with the work as its author and not to have the work modified in a way that is injurious your reputation as an artist that's of europe that's under european law yes and clearly the  ent of all right so long as your rights are not prejudiced i was referring to the right to be paid even in the event that the agreement was transferred from camp to a third party if you read the whole sentence the all rights shall be transferred to us for the entire world with the right to transfer it in whole or in part to third parties so long as your rights are not prejudiced or limited so what they're saying is we can transfer this agreement to a third party song as your third party will honor your rights to pay the sounds that are doing to the contract it's not saying that you will have rights to continue to exploit the work even after you give us all rights to exploit the work of the movie about and it was from the swedish movie that carlin eventually acquired the rights from the owner of the swedish movies and it's just that history which makes the swedish really were we that's right and it's also interesting to note that in the composer's website any talks about how he just improvised the music for the swedish film in less than a minute when in fact he had already written and recorded two versions of it in italy two years before and he chooses not to tell the world about michael so in addition to the first sentence that has the all rights grant there's also a second sentence which says you also give us the right to extract one or more musical excerpts from the soundtrack for any adaptations and arrangements that we necessary and why would you need that if you got all rights already in the first sentence because under the italian copyright law any grant of of derivative work rights has to be set forth separately that's in article one nineteen of the italian copyright law which the district court was purporting to apply here and also article one thousand nine hundred of the copyright law says that any such grant is produced presumed to be exclusive unless there is a contrary writing and there's no contrary rating here it's a grant to make adaptations in arrangements and that grant under italian copyright law is presumed to be exclusive and the district court really inexplicably for the first time in its decision said well but so it's a did to a  treatise on italian law and said well exclusivity is not deemed to be essential but the statute itself says whether it's essential or not it's deemed to be exclusive unless there's a contrary writing that says it's not exclusive so we have a specific grant  derivative work rights in the second sentence which has to be in the in the document for purposes of italian copyright law it's just a box you have to check and you're telling copyright law to say that we also are granting the right to make derivative works described in america do other than to publish sheet music is that its principle i will i will let current counsel talk about the full range of what carlin does but mostly what music publishers do your honor it is they license music for use in movies and t v shows and commercials and things like that but sheet music education over its origins right in the sheet music business is a very very small part of what most music publishers do and in fact the section one thousand of the italian copyright act which specifically talks about sheet music publication there's case law in italy that our expert professor good deni relied on to say that those restrictions on print publications don't apply to a work that is for music publication generally a contract that is for music publication generally covers all those uses and not just print publication and i see that i have one question with the result been different under american law i don't believe well it certainly would have been different and then the result the district court found i think under american law of the transfer of rights to cam would have been exclusive as well we said a case the guy fell against poynter products case in our briefs from this court from the second circuit that said a grant of all rights has an everyday meaning everybody knows what all rights mean in means the totality of the transfer including the right to register for copyright and all the exclusive rights that are required for that and anyone who wants to impose a contract it's a fifty year old contract but it's still only a one page contract and quite honestly i don't have a lot to add that judge sullivan did not already cover in his opinion i think that sullivan  thoroughly examined all the issues did the research on a tie in law and u s law and covered it all in his opinion but i do think it would be perhaps useful to go through the one page contract and and set forth the way that i see the language in that contract the contract begins following our understanding sam with reference to the agreements with the production house zenith sin for the film provisionally entitled well know we hear by confirm the for the for the following so we know that this contract pertains to enter and an agreement that's going to be for that going to pertain to music in a film so why is this important well because under italian law so this is a contract made in italy among italians a tie in music publisher and italian composer they know that the rock and when a when a composer writes for a film the film maker the film producer gets the rights to use the music in the film the composer retains his rights to use the music outside the film so  in italian law that says producer only gets the rights as what he needs to produce the film composer keeps all the rest so that's the start that's should be the starting point for analysis of ok what are we doing here where arraigned we're making a contract to write for a film then the next paragraph you will compose and perform the musical score for the or aforementioned film ok so what you got it he's going to write the music for the film he's going to perform the music for the film and by the way that's what he's going to get paid for do to do he's this isn't a term contract it's not will you're going to write for us for six months and whatever you write we get it's not a whatever we'll pay you buy the song you write the score and you can and i mean you compose and perform the score for the film and that's what you get pig then we turn to the really important language of the contract which is the granting it says all rights to use the music that you composed which must mean the score because that's what he was hired to  do from the time of its creation shall be transferred to us for the entire world with the right to transfer in whole or in part to third parties so long as your rights are not prejudiced or limited we have a composer writing for film he gets to keep all the rights except for whatever the fuck the filmmaker needs and his rights so that's all that he gets to keep it outside of what's needed for the film and his rights cannot be so clearly the parties knew how to say moral rights when they meant moral rights it doesn't say so long as your moral rights are not prejudiced or limited it doesn't fit so long as your moral rights are not prejudiced and limited because if we think about this as ok he's writing music for the film and there and the producer is getting the rights to use them in the music in the film cam the music publisher is just an intermediary then the music publisher to do a bunch of things with that music in the film but one of the things they're not going to be doing is is making derivatives except as expressly authorized under this agreement which i'll get to in a moment so there's not there shouldn't be more rights even implicated in this agreement because they don't have unfettered rights to make through if it works and cam has conceded that the all rights granting language is not the operable language here because they've told us oh well under italian law a grant of derivative work rights which is the which is the question here do they have the exclusive right to create derivative works khamis told us a grant of derivative work rights has to be separately set forth so what they're saying is all rights etc doesn't pertain address park rights they're derivative work rights if at all must come in the next sentence of the grant and what is that say you also give us the right also give us the right so they that means they're giving something else in the second sense you also give us the right to extract one or more musical excerpts from the soundtrack from the soundtrack for any adaption or arrangement that we deem necessary for the best commercial use and to add any lyrics to the individual musical tracks with the full freedom to choose the author and the work so long as your moral rights are not prejudiced so what is cam getting here and this grant of derivative work rights well they're not getting exclusive right because it doesn't say that and and i disagree with my adversary as to whether the law presumes an exclusive grant or or not the law and italy and the united states actually are against presumptions of an exclusive grant or the words are not where the word exclusive is not used or some manifestation of an exclusive grant is is not given and that's in paul marciano's declaration talks about that and judge sullivan talks about citing the relevant authorities in and in any case doesn't say they get exclusive rights they get very limited rights they get one or more musical excerpts from the soundtrack for the best commercially of so what are we talking here of the music publisher right is going to now exploit the music that was in the film and will have the right to modify it let's say they were to make a soundtrack album they were supposed to make album but they didn't so they would have the rights to make certain modifications that might make it more commercially viable and that's all they get here they don't get right to full right to make to rivet of works he had all the rights they only got what they grant what he granted to them so the judge s the composer is going to be paid he gets paid for as the composer of the music making up the films soundtrack so he's not getting paid for music that's not in the film soundtrack which was one of the other arguments i've i've raised as a ground for months in the district judge didn't address because he found this wasn't an exclusive grant of derivative work rights he's not getting paid for music that's not in the in the film soundtrack he gets paid in paragraph five for directing the orchestra creating the score selecting music to record to disks he does not  paid for the rights to distribute and reproduce the music not anything about modification or derivative works it's nowhere included in his compensation and in both the italian copyright law and us copyright law we have the we have the the ability to divide up the copyright into various rights you have the right to perform a copyrighted work you have the right to distribute a copy of a working i have to right to make derivative work here we only have two other rights distribute reproduce not make derivative works that is so that's further evidence of the fact that he's not getting paid for exclusive derivative work rights so how can a grant of rights that provides that an author's rights are not from not prejudiced or limited result in the ultimate prejudice cambs interpretation of so long as your rights are not prejudiced and limited means is that despite that language million is rights can be completely and utterly prejudice and limited he has no rights because they have the exclusive rights how can a grant of rights to extract one or more excerpts of soundtrack and to add lyrics to individual tracks be construed as a grant of all rights to make derivative works exclusive rights to rid of works the answer is that it can't i say that my time is about it thank you good points thank you really very briefly just to touch on a couple of the points most significantly judge sullivan got it wrong and carlin's council just got it wrong the italian copyright act does provide a section one thousand nine hundred this is a one fifty eight in that are being granted in the one nine hundred sixty six agreement is is that everything that has to be everything in order for them to have standing to bring well that's that's not true under either us or italian law the party only needs to have the exclusive rights to use the particular to make the particular use that's being made so under u s law since the one thousand nine hundred six act went into effect copyright can be infinitely divided in subdivided and different people can have different exclusive rights and each of them has standing to pursue a violation for those rights it sounds to me like you are past each other because you're arguing about these specific rights and saying well you got exclusive use of them so you can you can sue here based on of the derivative work right he just talked about whether it was exclusive or not he made no finding as to which rights were being granted and so for that reason i think at the very least he needs to go back i  right thank you thank you your honor thank you both will reserve decision in this case remainder of the calendar is on submission saw alas the clerk is not yet here so get that look