one that was incorrect district court properly held that there was no probable cause to arrest the plaintiff district court properly held that a law was clearly established district court improperly held that even though the law was clearly established the defendant and that the law would not be clearly established if officers could reasonably think that their conduct was was lawful so why don't we start with that placed in about the whether or not the law was clearly established what cases would you ask us to look to to find the law clearly established here people versus mungana over the new york court of appeals two thousand and three judge cybill said that it was directly profanity made reference to the license plates of the people who work in the parking violations bureau and the appellate term in that case said they would finley references to retaliation that's pretty serious but that set up to receive consumer complaints now i don't think that that has a parallel here but what i overlook well there's something of a parallel because the plaintiff wrote what he wrote on a traffic ticket payment form that w him by the town court he mailed it back in it wasn't quite a phone call but it was a communication with a government office and not be clear but that form is not here's here's how you register your complaints with the with the town that form has a singular purpose it accompanies your payment so so to that extent is there any significant difference or not i don't think it's a significant difference between the two both cases the individuals who were communicating with the government office using crude language meant danno it was worse there's also a new york court of appeals case called deeps seventy five new york second where they  threatened to beat the crap out of the mother of the day or night on the street that's a direct threat that wasn't enough to two that was that was not enough to make out the elements so you have two cases where the facts are worse than anything clarity but sometimes it's the cost that's part of whether it's clearly established whether whether the conduct is attack of the reasonable and here in light of all the circumstances including the fact that the way asked him to do this the judge seemingly approved of it all why wasn't it objectively reasonable for these police officers to make the arrest the judge didn't approve  lines the judges do that at arraignment but the judge did not play an active role the judge testified he just glanced at it and said here you're about to be arrested he would you probably think first of all this is the kid who referred the matter so to the extent that the judge thought it could be threatening and to the extent the da thought it was threatening would it have been objective lee reasonable for a law enforcement officer to do so especially in the circumstances where he doesn't decide on basis to think that the plaintiff that directly threatened anyone in his letter the police have a duty to apply the law and to know the law too and my brief sets forth looking at the advice of counsel cases from around the country there are certain  the court said that the fact that none of the officials who reviewed charging instrument in that case expressed concern about its validity was evidence that the error was not obvious why wouldn't the same conclusion apply here in october that's two months there's no suggestion of an imminent problem if they wait two months they should have been at his house that week if it was truly a threat messerschmitt does that you might consider the views of even a magistrate who signs off on a warrant a raise a concern about whether this person is threatening the women in that office and he you know the qualified immunity tolerates mistake in judgment so i'm not suggesting that we would conclude that initio but now the question is could the officers have reasonably believed that it was sufficiently threatening to to arrest the person no because he didn't directed toward anyone in particular it didn't language from the supreme court cases and this court that talk about what is a true threat and when you can arrest somebody based on a speech involves speech that's much worse than anything barboza said there was a case to cite about his case called a court called poset or where i think he said  one day you're going to get yours he said it to their face that wasn't enough for an arrest so you know what context is everything i mean there was no reason to be upset with these particular individuals the ticket was issued by the state authorities not the tam these people processed payment of of of debt so it's there's a certain irrationality about the action that might appropriately be considered but again where's the threat i mean he didn't direct it to an individual he directed it was a town he writes in caps he's angry this is an expression of obvious frustration let like this get sent to government offices and credit card companies and you throw it away you don't regard you don't you don't arrest somebody for speaking like this people speak like this all the time unfortunately this you know i get it what he wrote mature nobody looking at this would say to themselves oh my god something terrible is going to happen to us what are we going to do let's call the police if he did call the police you to arrest him right away the clearly established law as judge sidel held s he not entitled to qualified immunity he has a duty to ensure that nobody is falsely arrested you know you have a duty to intervene that's what this whole case is about when you're if you view them your position is that he had a duty as a matter of on unity to undo the arrest to say wait a minute i don't know how to undo the arrest yet somehow work or to say to do gotta wait a minute this is not aggravated harassment what are we doing here let's think about this there's not required to do anything about the insufficiency of the complaint the assisting the arresting officer was if you know the law why why is the arresting officer supposed to do it but the judge you what you have here is three law enforcement officials the judge the da and the police who didn't know the law but in the in the officers affidavits they they accurately recite the law and they know what the legal standard is for aggravated harassment and when the first amendment interferes with an arrest it's in the affidavit and they arrested him anyway i just i want to focus on this because i do not understand your argument as i understand it the evidence is that he hadn't even read the information until after the arraignment correct so on what basis would he have any understanding of the some of the issues that you're raising or any reason to even read any of the cases or be familiar with the nature of the specific  language or message from mr barboza we knew the message because he read the form and he could have said this is not aggravated harassment what are we doing this is not going to hold up it's going to be dismissed and it was pretty decisively why we're arresting this guy he could 've said that someone could i looked it up and said this is not aggravated harassment he didn't do that thank you saw the district attorney and asked for his opinion as to whether an arrest could go forward or not this was a case where the district attorney affirmatively directed the officers to make the arrest the case where pulp you're not saying they would have been required to follow that directive clearly there are situations going the argument of your adversary is that the directive was so clearly unsupported by the law that the officer could to the question of whether whether the police officers actions were objective the reasonable or not it's not a lesser situation or the status of we've rejected the notion that there's a three part standard the question is whether there 's a constitutional violation which the district court thought there was and then whether it was objectively reasonable for the officer to think so now whether it's con whether he knew it was violative but that it was he acted objective we reasonably we have to be able to conclude that he and then and an officer would object if reasonably think that he could make an arrest in the circumstances that's true and it's the in the circumstances portion that the district attorney's actions play a role in in this case as i said this isn't a case where an officer just asked for an off the cuff opinion from actor and your adversary says that's outweighed by the obvious right is something that we contest we're dealing with a situation in which there was a criminal statute to forty point thirty eight which was in effect in new york statute was not overturned until two years some maybe there was some way for five messages i just want you to think that number is terribly important i think it's context and i think it's the subject matter of the statements and we don't know exactly what was said on those tape recordings also as draggy points out there's a huge difference between calling into a complaint whine and saying things which may be untoward and actually going out of your way to deface an official government form to indicate your deep dislike for a means of cali by changing its name from town of liberty to town of tyranny tyrannies a word that carry some pretty strong connotations it is a political speech connotations well no but i look at the context of it overall your honor the way that the message was presented this was large nature the way that this message was conveyed to say that this message wasn't directed toward individuals is just just wrong the people who received it took the words and you should excuse the language but count bitches to mean the five female town clerks who have been processing this traffic ticket they received it and now who's processing the tickets i mean the letter comes from justice brian rourke it's not sure you get there yeah but it's not his state of mind and the da for another received the message knew the facts regarding this particular town court how it operated and did perceive it i don't disagree with you that the subjective perceptions are relevant to the cessation of whether it is objectively fairly in this context of a truth true imminent threat to anyone in the village of liberty well as i pointed out in my brief there have been many instances in the past of senseless violence and on and on and on the you're talking about yes what about their message is imminently pose an imminent danger to the people in the village of liberty well i wouldn't put too much weight on being out of state it's a relatively short drive across the connecticut all right but you put some weight on it so i mean it could have been in state out of state i don't think that's terribly important you're receiving unless passage of time on this point well yes but i mean imminent doesn't have to be within the next hour or two imminent could be it's going to happen any day any time now and here you have an individual who by the looks of the message could very possibly be mentally deranged who is it who's articulating deep dislike for the town of liberty as i said with the town of tyranny whose addressing a message to what  mission point you don't know not a note that way and that happened in that type of handwriting deeply underlined yes it does your honor i think it makes a difference i thought the context that matter to you is the fact that the profanity was linked with the vaal garrity toward you and so to that extent the profanity which can imply a desire to harm is linked to particular individuals did i misunderstand your argument  honor i'm saying that there are some additional factors here which add to that well let me ask you this even if we were to conclude that someone who takes this action in the circumstances certainly should be investigated that maybe the police should have gone out and talk with him to see if they pose a danger why wasn't it premature  on just on that written statement especially since it wasn't done you know that day or that night but two months later your honor the question is qualified immunity and the reason why the officers should be given qualified immunity is because the district attorney came in and said this is in their opinion a truth right and i think a fair argument can be made that that language that notes and as it was was a true threat now the courts have ultimately held otherwise i understand that but an officer in the goddess position standing there is a court officer being directed by the d a based on appearance from the d a that the only people left standing in this case are the two officers who with all due respect had the absolute least to do with what occurred here all right let's hear from mr bernstein thank you thank you the issue of imminent threat look at the cases where the defendants were found not to have violated any statute and those were affirmative statements of future violence state versus deeps mangano post there here there's not even a hint of any violence toward anybody it's an it's a vulgar act of frustration there's nothing imminent it is no future threat you can't make an arrest based on this type of content and it's certainly not fighting words and i can't think of any other exception that would apply here sometimes can be can be significant in suggesting dangerous i said part of the problem here is there's something irrational about directing the anger toward these particular people as opposed to those who are responsible for issuing the the summons or the ticket and so on i'm just concerned about language that can be at one extreme view this threatening directed toward a group of people who would not reasonably be the targets of such such vitriol and and the officers reaction after a district attorney tells them the women felt together now that he's got caught he's got conduct that could be threatening at the stream you've got victims who felt threatened and you've gotten a da who says issue a complaint  charge but there's a major hole in defendant's argument if we accept their proposition why would they wait two months this should have been on his doorstep in two days if somebody is that crazy to think they're really going to do it the d a forgot about it that's what gets you a problem with the much to both sides