dissenting (as to Defendant Roper):
The majority affirms a judgment requiring Police Officer John Roper to pay $10,000 in punitive damages because his lawyer neglected to include qualified immunity among the grounds for seeking judgment as a matter of law. Because I believe that under the circumstances of this ease it is unfair to consider Roper’s qualified immunity defense forfeited and because I believe the defense is valid as a matter of law, I respectfully dissent.
Provost’s conduct. The key facts entitling Roper to the defense of qualified immunity are not disputed. Robert Provost, owner and operator of a halfway house, came to the Newburgh police station in an effort to retrieve a halfway house resident believed to be there. On five occasions during a one-hour interval, he asked at the reception window of the public waiting area to have the resident produced. He was told to wait. Six or seven people were seated in the waiting area.
In trial testimony, Provost described his own conduct as follows. “I hollered through... a little slit underneath” the glass window. “I ... banged on the glass.” “I yelled through the window.” In response to the question, “Is it your recollection now that you did become noisy at some point?” Provost answered, “The fifth time.... Yes, yes.”
Roper and his supervisor, Lieutenant Patrick Sorrentino, were standing together in a room behind the glass window, 25 to 30 feet from the officer at the window. Roper and Sorrentino were discussing one of Roper’s reports. Both were in the identical position to see Provost at the window and to hear Provost’s yelling. Sorrentino told Roper to “go and handle the problem.” Roper testified, without dispute by Provost, that once he realized that Provost was not going to calm down, he placed Provost under arrest for disorderly conduct. Sorrentino was standing behind Provost when the arrest occurred and took no action to prevent it.
Probable cause to arrest. On these undisputed facts,'there is a substantial argument that probable cause existed for Provost’s arrest. Even if, as the majority points out, it is necessary to raise one’s voice somewhat to be heard through the slit in the window, Provost’s undisputed conduct in yelling, hollering, banging on the glass, and becoming even noisier on the fifth occasion than on the prior occasions sufficed “to warrant a person of reasonable caution in the belief that [Provost] ha[d] committed ... a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). New York law defines disorderly conduct to include a person who “makes unreasonable noise” “recklessly creating a risk” of “public ... annoyance.” N.Y. Pen. L. § 240.20(2) (McKinney 2000).1
*166Qualified immunity. Even if, under the majority’s meticulous parsing of the disorderly conduct statute, probable cause did not exist as a matter of law, the defense of qualified immunity was unquestionably established. As the majority acknowledges, the defense is available if the officer has “ ‘arguable’ probable cause,” Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir.1997), and he may not be required to pay money damages for making an arrest unless his “judgment was so flawed that no reasonable officer would have made a similar choice.” Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.1995). In my view, there was undoubtedly “arguable” probable cause, and many, perhaps most, reasonable police officers would have made the same arrest decision that Roper made.
Waiver of qualified immunity defense. Nevertheless, the majority declines to accord Roper the defense of qualified immunity because it rules that he forfeited the defense at trial. My disagreement requires a full understanding of the pertinent circumstances.
The Defendants asserted the defense of qualified immunity in their answer. At the close of the evidence, counsel for the Defendants moved for judgment as a matter of law (“JMOL”) on the ground that the undisputed facts established probable cause for the arrest.2 The majority rules that a forfeiture occurred because counsel did not amplify his motion by saying, “Your honor, not only do the undisputed facts establish probable cause, but, in addition, they also show that it was objectively reasonable for officer Roper to believe that these undisputed facts established probable cause.” Despite that omission, the issue of qualified immunity was raised before the trial judge when counsel for Provost asked to have the qualified immunity defense removed from the proposed jury charge on the ground that there were no “questions of fact [that] need to be resolved by the jury.” The Court denied the request, stating, “I do find there’s factual issues for the jury, and I will be giving them a qualified immunity instruction.”
In ruling that Roper forfeited the qualified immunity defense, the majority is faulting his counsel for not getting up at that point and saying, “Your Honor, I realize that you have just denied the Plaintiffs motion for judgment as a matter of law on our qualified immunity defense, but technically, in making that ruling, you had to consider the undisputed facts viewed from the Defendants’ standpoint; I now ask you to rule that we are entitled to qualified immunity as a matter of law, viewing the undisputed facts from the Plaintiffs standpoint.” I have little doubt that the Magistrate Judge would most likely have replied, “Counsel, didn’t you just hear me say that I find there are factual issues for the jury on the qualified immunity defense?” and counsel, apprehensive that a discourse on the technical distinction between a JMOL motion made by a defendant and a JMOL motion on the same issue made by a plaintiff would have incurred at least a reprimand, would have simply said, “Yes, Your Honor” and sat down.3
*167I do not believe the absence of the above colloquy amounts to a forfeiture of Roper’s valid defense of qualified immunity. Principles governing the forfeiture of legal rights are not rules of a game to see which party’s lawyer has a lower point score when the litigation is completed. They exist to serve legitimate purposes. In the case of the rule governing a JMOL motion, see Fed.R.Civ.P. 50, two purposes exist for requiring a party to move at the close of all the evidence that the undisputed facts, viewed from the adversary’s perspective, entitle the moving party to judgment (or at least to have a particular issue adjudicated in its favor). The primary purpose is to afford the adversary an opportunity to persuade the trial judge that the adversary should have an opportunity to present additional evidence supporting its side of the issue on which JMOL is sought. See Leopold v. Baccarat, Inc., 174 F.3d 261, 268 n. 6 (2d Cir.1999) (ground not asserted in JMOL motion not considered where adversary had “no opportunity to cure any deficiency in her proof’); Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 286 (2d Cir.1998). The second purpose is to afford the trial judge an opportunity to simplify the jury’s task by removing issues that are not subject to reasonable factual dispute. See generally 9 James Wm. Moore et al., Moore’s Federal Practice § 50.21[2] (3d ed.2001).
In the pending case, neither purpose is served by enforcing a forfeiture against Roper. Neither at the conference at the close of the evidence nor at any time thereafter has his adversary claimed that he has been denied an opportunity to present any further evidence that would support his side of the qualified immunity issue. Indeed, he argued to the trial judge that, from his standpoint, there were no factual issues on the qualified immunity defense. As for the trial judge, he had a clear opportunity to remove the qualified immunity issue from the jury’s consideration and declined to do so.4
Other courts have recognized that an issue has been adequately presented in a JMOL motion when it is “inextricably intertwined” with an issue that was presented. See Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 198 (8th Cir.1995); see also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.1993) (issue raised “a bit obliquely” sufficed to warrant consideration on motion for JMOL). In the pending case, whether it was objectively reasonable for Roper to believe that he had probable cause was surely intertwined with the issue of whether he had probable cause.5 I *168acknowledge that in a prior decision our Court has declined to consider a qualified immunity defense where a JMOL motion identified only the issue of ultimate legality of police conduct and not the issue of the officer’s objectively reasonable belief in the legality. See McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir.1997). But in McCardle there had been no mention of qualified immunity in any conference with the trial court, and the defense “would have been difficult to establish.” Id. In the pending case, the issue was discussed with the trial judge, and the undisputed facts, viewed from the Plaintiffs standpoint, established the defense. Because the rules of civil procedure are to be “administered to secure the just ... determination of every action,” Fed.R.Civ.P. 1, I would not deem Roper to have forfeited his qualified immunity defense for lack of meticulous compliance with Rule 50. See Scottish Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir.1996) (“Technical noncompliance with Rule 50(b) may be excused in situations in which the purposes of the rule are satisfied.”) (footnote omitted). Nor would I rule that we may not consider the issue for lack of proper presentation in the trial court. Although issues not properly presented in a trial court are sometimes not reviewed on appeal, that is not an absolute rule, and we frequently consider such issues. Moreover, in this case, the qualified immunity issue was presented to the trial court, albeit technically not from the Defendants’ standpoint.
Even if a forfeiture of the qualified immunity defense occurred, the deficiency of Roper’s counsel may be overlooked to prevent “manifest injustice.” McCardle, 131 F.3d at 52. It is manifestly unjust to require a police officer to pay $10,000 in punitive damages for making an arrest for which probable cause very likely existed and a winning defense of qualified immunity certainly existed, just because his lawyer argued only that probable cause existed and omitted the closely related point that the officer could reasonably believe that probable cause existed. The injustice is especially compelling because the trial judge made it sufficiently clear that counsel’s more precise articulation of his position would have been futile.
The injustice of enforcing a forfeiture of Roper’s defense in the absence of any prejudice to the Plaintiff is manifest if one considers only Roper’s case. But the injustice is exacerbated by comparison of his situation with that of his supervisor, Lt. Sorrentino. Both Roper and Lt. Sorrenti-no saw and heard exactly the same conduct by Provost. Sorrentino was not merely “present in the police headquarters,” 262 F.3d at 155, as the majority recounts; he was in the same position as Roper to see and hear all of Provost’s conduct. Sorrentino told Roper to “handle the problem.” Roper tried to calm Provost down and, when that effort failed, arrested him for disorderly conduct, with Sorrentino standing immediately behind Provost, obviously observing and condoning the arrest. “It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994); see O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). “An officer who fails to intercede is liable for preventable harm caused by the actions of the other officers where *169that officer observes or has reason to know: ... that a citizen has been unjustifiably arrested.” Anderson, 17 F.3d at 557.
I would extend Sorrentino the same qualified immunity defense that I believe Roper should have, but if Sorrentino is to be exonerated, as the majority rules, not because of qualified immunity (which the majority deems forfeited) but because he is deemed not to have any liability for the arrest, then the injustice to Roper is heightened. The lieutenant who ordered his subordinate to “handle the problem” that both had seen and heard and then stood by while the subordinate “handled” the matter by making a disorderly conduct arrest is exonerated from liability while the subordinate is required to pay $10,000 in punitive damages because his lawyer failed to argue that there were no factual issues on the qualified immunity defense after hearing the trial judge say he thought there were such issues. If that is not a “manifest injustice,” I am not sure what the phrase means.
Ultimately this police officer is being punished for just one thing — his lawyer’s mistake. In the circumstances of this case, that is an entirely unjustified outcome, one that elevates legal formalism above basic fairness. Since I cannot persuade the majority to rule in Roper’s favor, I can only hope that if his employer does not reimburse him, his lawyer will do so, thereby sparing the courts a suit for legal malpractice. I respectfully dissent as to Defendant Roper.
. The majority concludes that probable cause could reasonably be found lacking because the mens rea and conduct elements of section 240.20 could reasonably be found lacking. As to mens rea, the majority focuses on the requirement of acting with "intent to cause public inconvenience, annoyance or alarm,” N.Y. Pen. L. § 240.20 (emphasis added), ignoring the alternative mental state of “recklessly creating a risk thereof,” id. (emphasis added), which is what Provost did. As to conduct, the majority concludes that ”[t]he jury was not required to infer that Provost was making 'unreasonable noise' as required by the statute for him to have been engaging in disorderly conduct.” This might be an appropriate observation if we were reviewing Provost's conviction for the criminal offense. The issue for us, however, is not whether he was making unreasonable noise, but only *166whether there was probable cause to believe that he was.
. The motion was renewed after the verdict.
. If the trial judge had denied Provost's JMOL motion on the qualified immunity issue by saying something like "On your motion, I am required to view the evidence from the standpoint of the Defendants, and doing so, I conclude that factual issues preclude granting your motion,” counsel for the Defendants might well have had an obligation to make his own JMOL motion on the qualified immunity issue or risk forfeiture. But the trial judge denied Provost’s motion with the general statement that he found that there were factu*167al issues for the jury. Although the majority believes that the Magistrate Judge’s ruling on Provost's motion "gave little basis for [Roper's] counsel to predict how the judge would rule on Roper’s motion had it been made,” 262 F.3d at 162 n. 11, I think most lawyers would have no trouble predicting that the motion would have been summarily denied, and few, if any, would have had the temerity to make it, once the judge stated that he thought there were "factual issues for the jury.”
. I have no quarrel with the trial judge's pre-verdict decision, since it is often advisable to reserve decision on an issue and obtain jury fact-finding, in the event that an appellate court disagrees with a post-verdict JMOL ruling. See Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 166 n. 2 (2d Cir.1980).
. I recognize that the issue of the reasonableness of an arrest or a search for purposes of a Fourth Amendment inquiry is distinct from the issue of objective reasonableness for purposes of a qualified immunity inquiry, see Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); cf. Saucier v. Katz, 531 U.S. 991, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001) (same distinction as to reasonableness of force used in making arrest). My point is that the issues are sufficiently intertwined that a JMOL motion on *168the probable cause issue should suffice to preserve a qualified immunity defense, at least in the absence of any indication that the Plaintiff would have presented evidence to defeat the immunity claim that was not presented on the probable cause issue.