last or argued case on our calendar is richard lynch versus the city of new york pleadings in numerous instances the district court erred by considering the facts and drawing inferences from the facts in the light most favorable to the defendant to the proceedings what inferences do we draw  hundred fourth street and the only time he was in the roadway at one hundred fourth street is when he crossed from the north sidewalk to the south side walking across the street across the street not probable cause an ordinary  i know if that's probable cause then every single person in this courthouse who came to work this morning has violated the law at some point point and could be arrested for violating a vehicle and traffic law levon fifty six but most important of the district court find probable cause on that statute and it's important to note at the outset that the defendants in the lower court did not raise eleven fifty six a of the vehicle and traffic law until their reply brief initially the only mask and he was wearing it but you don't violate that statute in just as other people massed with you so when i pointed that out in opposition they then changed the theory under which they were attempting to justify the arrest vehicle and traffic levon fifty six a only in their reply brief if there's no probable cause this whole house of cards fails is that correct well i think that's correct i mean the determination that there was probable cause was the honor so it was pled that the n y p d legal bureau has a very disturbing pattern and practice going all the way back to at least a two thousand and four mass arrests at the republican national convention whereby only fabricate having seen something that they didn't actually say absolutely and that that is you know you want to ask what the inference is where the reason one can infer that officer mandy never saw mr lynch do anything other than be standing on the south sidewalk one hundred four street is mandi lied on the summons three summons that mr lynch was going westbound in the middle of the roadway had student front of a grade toyota camry at some point impeding the east were to flow of vehicular traffic fourth street has crossed from the north sidewalk to the south sidewalk and then out of nowhere without a word officer mandi and then another officer grabbed him and threw him into a van with great force causing him very severe physical injuries and then took him down to the precinct where he was held he was purposely denied food and water and use of the bathroom by deputy inspector lombardo who are already knew him and engaged in a stare down with him mr lynch it's  been a known fact there are those who police demonstrations in new york has been demonstrating going back a long way they've come to his house to ask him questions in the past lombardo knew him and the inference is to be drawn from the facts that is that mr lynch was purposely targeted for an unlawful and gratuitously violent arrest false charges on the summonses and denial of use of the bathroom and having food and water while in custody soley because of the content of his speech the viewpoint of his speech that he was in the black lives matter demonstration and i didn't like him for that may also didn't like him even before that for his other advocacy and it's been played that the n y p d legal bureau has been engaged in this sort of suborning of perjury by arresting officers going back to the two thousand and four republican to make very serious charges very we've been shouting from the rooftop about this for about a dozen years now and we had some strong language that's been put in the amended complaint by judge kerrison magistrate judge francis during the two thousand and four republican convention judge cast in the my room case which is cited in the amended complaint reinstated fabrication of evidence claims against an n y p d p d legal attorney based on this and all indications are that this is what happened here as well as a note in  arresting officer for the other plaintiff who did not appeal that as per officer mandy who fabricated the accusations against plaintiff and as per deputy inspector lombardo who was in charge of the whole policing effort for the strategic response group a consultation was had with attorney paver men and then ten minutes later the summonses were issued to the other p all the false words against her and there's every reason to believe that because officer mandy was involved and that collusion to fabricate false charges that mandi also met with lombardo an attorney paver meant to have the same thing happen they were extremely grave charges and and were hoping to address them and their suit and we played in detail facts that make this not just speculative but there is a long pattern of this and basic law yes your honor absolutely the movement here claims that he was just crossing the street where does that lead to probable cause well your honor i think that this court has held in many cases involving protest that context matters and so it's not just that mr lynch was crossing the street it's the perspective of a reasonable police officer that term and whether there was probable cause and what was happening here was a inference however in favor of the nonmoving correct your honor but it was cross the street right so even though we look at the reasonable police of if what he says has to be taken as true at this point all he did was cross the street what reasonable police officer would find probable cause and crossing the street well your honor context matters and what we had here was no context matters but that's what he said he did and we take that is true yes your honor was crossing the street yes but what we know a reasonable police officer on the scene saw was numerous people and it's undisputed from the complaint that there were numerous protesters in the street that there was an order to remain on the sidewalk that other protesters were blocking traffic and that mr lynch was in the street immediately prior to his arrest so from the perspective of a reasonable police officer it might not be immediately apparent that his intent was just across the street there's no there's no allegation that he was crossing you know a legal sorry said he was telling i'm sorry but did you say something the summons as he was standing in the street it does other than crossing the street he was not standing in the street he was not standing crossing the street he was not in the street at the time cited in the summons yes your honor i would to make that that's not contradictory context matters more when when facts are being decided but when the when the court is trying to decide whether complaint states a class of action and is required to accept as true or factual allegations in the complaint it's difficult be six motion or twelve so emotion can accept as true the assertions in the summons when the complaint has an allegation that's diametrically contradictory terms of what the plaintiff was doing well your honor i'm not sure that i would agree that it's diametrically contradictory because what we know is that mr lynch was slowly crossing the street immediately prior to his arrest assuming you know what he says is true exactly and so from the perspective of a police officer who is scanning a large protest looking for protesters who are in the street you know i don't think it's contradictory that what a police officer saw was him in the street a street that undisputedly was not closed to traffic so there was vehicular traffic in the street at the time and there you know that he wasn't crossing a across a block or anything like that was at a cross counsel but that's what he thought he was doing so i asked you again where was the probable cause to arrest this was a unpermitted protest where the street was open and vehicles were in the street situation where undisputedly people were blocking traffic in the street seeing a person standing in the street amidst vehicular traffic gave rise to probable cause under the circumstances here he doesn't say he was because of his surgery immediately prior to this protest other than crossing the street from one side to the other side that was one hundred fourth street line of richard lynch was not in the roadway and correct your honor but nevertheless he was in the roadway immediately prior to his arrest and what we know from the complaint as a whole is that protesters were being arrested for being in the street a street that was not closed off a street that was open to vehicular traffic those facts give rise at least if not to probable cause then to arguable probable cause for for all the reason for all the three cases that the summon cause or at the very at a minimum arguable probable cause that also defeats the malicious prosecution claim the first amendment retaliation claim and the abuse of process claim r this court concluding that the officers were correct in seeing probable cause to arrest or arguable probable cause to react if we take what mr lynch said is true there is no probable complaint in front of you there's tell me what you think would lead to argue probable cause that he was in the street your honor during an unprecedented prop protest when protesters had been asked not to be in the street he was crossing the street that's what do you call it from the perspective of a reasonable police officer looking for protesters who were in the street amidst vehicular traffic it wouldn't be clear whether or not he was crossing the street so the police officer says what are you doing any of them crossing the street i mean is there are no i don't think it's a reasonable police officer can be expected to approach every protester who's in the street despite an order what do we think a reasonable police officer will arrest everyone they say he said he was standing i'm reading from a fifty three of his complaint on the south sidewalk and while he was there since he crossed from the north side of one hundred fourth street to the south sidewalk that's what he said that's fifty two and then while he was standing on the sidewalk not in the street he was they grabbed him and arrested him fifteen that the n y p d directed marchers to get out of the roadway during the course of the march it acknowledges that there was vehicular traffic in the street that co point if you're was was standing in front of a car and that police officers but not right but your honor in other cases like for example garcia versus bloomberg this court has held that it's not a protest not even where there is you know a reasonable lots of reasons to believe that not every protester heard in order to disperse but not everyone was on notice from the reasonable police officers perspective are still probable cause when orders to disperse has been given and yet a protester is in the street blocking vehicular traffic regardless of that person's intent which may well have been just across the street from the perspective of a reasonable police officer knows that in order to disperse has been given knows that there are protests is not permitted that the street is not cordoned off that vehicular traffic is attempting to move through a roadway while people are brought blocking it then to see a person standing in the street gives rise to probable cause or at the very least arguable probable cause for their arrest i see that i'm almost out of time your honor so unless this all there was nothing in the pleadings from which one could infer that there were a lot of demonstrators in the street at one hundred fourth street when mr lynch was placed under arrest while he was standing on the sidewalk the only other person that was discussed as ever being in the like police officers from having to go through a trial when they have other important business to do how does that power city square with the fact that there was a big demonstration people yelling said he was wearing a mask but not at the moment to rast so why don't the police get at least the benefit of the doubt well your honor qualified immunity was never meant protect officers who knowingly violate the law and it was never meant to protect officers who purposely fabricate evidence in order to frame somebody it was never meant to protect members of the n y p d who purposely retaliate against somebody solely for the exercise of their first amendment rights and those are what's both been pled explicitly in the amended complaint and also what could be inferred from the complaint if you take the inferences in the light most favorable to the plaintiff discovery would allow a fact finder to find out if there really was if it really was in the in the view of a reasonable officer a situation so dangerous that mr lynch had to be arrested that's what discoveries for isn't it i agree discovery will certainly elucidate the actual conditions at the scene and then there will be an actual factual record both a summary judgment that had a filming of this and that the only footage i know of of ms rise arrest that was prior to mr lynch arriving on the scene that was improperly relied on by the defendant's motion to this mess because it wasn't part of the pleadings but it is part of the record i tried to access that last night we provided only a link to your honor's because it really doesn't have to do with mr lynch that was not accessible if your honour's wish to see it will of course be happy to  k one last point your honor asked if i may your honor asked if the whole case is reliant on the probable cause determination i agree that judge prescott threw out all the other claims because she found that probable cause