you have two cases on the calendar today the last case united states versus more is on submission so the only oral argue case is the first case versus mcguire qualified immunity case on multiple levels here there is a lack of binding precedent that would govern the conduct here and i ask you just at the outset whether i'd like to to get to the question of whether there are any factual disputes you and i understand your position as as in terms of the law but looking though for example as hostile and potentially violent and these are factual characterizations that the video at least raises some questions about i'm not saying that ultimately your position  wouldn't prevail but at this stage of the proceedings where there are factual disputes how can you prevail several points are on her first as a motion to dismiss as your honor points out i mean all  bottles were thrown in the direction of their once officers was one bottle right and i'm not saying that i don't know how that cuts but there is there is one there was one bottle is my recollection of the allegations in the complaint was that it was bottles numbers  opinion the facts are viewed from the perspective of a reasonable officer at the scene and if your honour's disagree with any aspect of the characterization as as  crowd was acting up or was hostile i think it's exhibits it's a given isn't that this was not a peaceful protest a quiet peaceful protest anymore it going on for many hours that is that is right and people were in the street at the very least and so one could i don't think it would be hardly a stretch to say that it was there when they were struck to traffic i mean the traffic at fifty place to go through that is at the very least your honour's we have a tense set of circumstances where bottles are being thrown in the direction of the officers according to plaintiffs we have a large group of protesters in a major intersection of midtown manhattan under those circumstances there is simply no clearly established law that would have put these officers on notice that the other side is saying  that you know the law that has developed in other uses of force that is pepper sprays flash bombs whatever they're called flash bangs and tasers are would apply here and they would would have been on notice why wouldn't that be the case for several reasons your honor the analogy to those devices i don't believe holds those devices are intended to  incapacitate their targets which is far from what we have here plaintiff's own allegations as the district court found showed they were not incapacitated were able to move freely around the the scene and in fact even to pursue the officers using that or the device here in the order to film at some of the some of the uses that of these other devices seem to me have been less involved in crowd control a case in which the police were criticized and i think one of the allegations by the plaintiffs in that case was that they didn't get have appropriate a warning to people to get back to get back on to the offer off the streets and back into the place where the protests were supposed to occur as i corrected other words they hadn't given enough that's correct and it was there was a strong implication in the in the complaint in garcia that the officer should have acoustic device under those circumstances because it is very difficult to hear it now smith's went as here you have a loud scene and it simply does not meet the high standard of liability here or three minutes i don't know what that means this it was it was used over the course of three minutes according to plan of some complaint and that is substantiated by by the video yes but in the video show i think the videos because all of us have rebut any contention that it was continuous through that period it was varying intervals throughout that period and there is simply no law that would have put these officers on notice  home when they had no specific reason to think that they were going to be presented with a danger result and the raid resulted in the death of one we have reason to test here at least as far as the offices were concerned was the click right to collect right yeah in this case and again i'm not saying you won't wouldn't ultimately prevail i'm just talking about where we are at this stage where there seem to be some disputed  facts about obviously there was there was a protest going on but the question was is really whether the the methods were proportionate to the situation at hand and so how would you respond to this that there was no water to disperse first according to plaintiff's complaint there was i officers here were certainly using the device to give clear dispersal orders mean that is that's clear from the tape yes absolutely it's in addition to the sound made by the  in two ways right one is to given an order of some kind and the other is to use the device to basically cause such s evere damage to one census that it would have the desired effect from the government the law enforcement's point of view so the fact that may or may not have been used in terms of the order does not go to the second question and that is whether the use was was proportionate and i'm not saying that   you say that it's irrelevant because it was decided in two thousand and fifteen and i understand your point but when we think about qualified immunity there's a t law whether there has been a violation under kingsley isn't kingsley relevant at all but two points your honor i take the point that on the underlying constitutional violation the law would be taken as it presently stands as opposed to the con alleged conduct was malicious and sadistic in the pretrial detention conduct in order to state a fourteenth amendment excessive force claim which is not at issue here and which did not purport to overrule doesn't make sense to me be should be covered how could it not be if you are a kingsley applies to pretrial detainees how could they have that rationale not apply to those who are not not considering the various mental states that might be should be required to show a substantive due process claim the court emphasized that in that in that circumstance was was the high speed police chase that that was a very different circumstance than pretrial detention which is custodial where someone has the right to leave taken away the right to care for themselves but in any event on the in the motion to dismiss context  e question in qualified immunity this perhaps most easily addressed is whether there is clearly established law better prohibits you have to look at december of two thousand and fourteen correct yes fourteenth amendment is not intended to cover the field of state law to what extent i mean the complaint says that these officers were acting deliberately in pointing the o do you have a response to that certainly take the allegations of the complaint as true but there is the several points and i think they're all and i wasn't sure about that in measure when i first saw the saw the video now that i think i think the video certainly would contradict any conclusion that there was an intent to harm here even plaintiffs have never made that argument the device was used in in close proximity to other police officers that the police officers walking in front of it you can clearly see on the video which according to pla own affirmations before district court shows a use of of the acoustic device in close proximity with the device pointed toward up people on the sidewalk no one is fleeing  around in and and that raises to my mind a question about there are a lot of in the brief of a lot of the factual material about the bill read three thirty three hundred but this is thirty three hundred this is the red one hundred six is that material relevant to the one hundred x is that the same device but just in a smaller package or is it a different device it's any testing or the information that we've been given maybe it's been included by reference regarding the testing that occurred by the by the new york city police department really says nothing about this device and that we have to kind of exclude that from our thinking and just focus on what there is that said about this took place i mean right yes your honor and the fundamental point is that there is very simply no law or no other source that would have put these officers on notice that what they were doing was an obvious constitutional violation at the very least thing that the that the police department itself did  and does not appear on the officers continuum of force imo i don't even i'm not even sure recent police officers would have thought they were in the force world at all let alone force it was so excessive that it would satisfy the high standard for liability here be so obvious that it would violate the fourteenth amendment what about the first amendment this was a legitimate first amendment demonstration   just me being a past this was a first amendment it goes to the very core of the first amendment this demonstration and the use of force applied has to be balanced against the first amendment rights of the demonstrators wouldn't you agree i'm not aware your honor of any case law that certainly would have put the officers on on notice that it was the first amendment and what shocks the conscience is different in the first amendment context than in other contexts i have never seen a case reaching that conclusion your honor and since we're analyzing these facts from the perspective of a reasonable officer at the scene i don't believe that officers would have heard of the first amendment would say they absolutely would have your honor it's comforting to know absolutely but under the circumstances here which were tense which involved bottles being thrown at the officers there's no clearly established law that the officers were required to wait before acting you know exercise of the first amendment was was a parent right from the beginning and people who are protesting and doing it in a calm way orderly way on the sidewalk are exercising their first amendment but apparently that was not the issue here the police were using whatever their whatever the one hundred x was against people who were because everybody was staying on the sidewalk people were not staying on the sidewalk  and amnesty america which suggests that indicate that uses of force can be inappropriate where  gratuitously inflicted pain in a manner that was not a reasonable response to the circumstances if there is a factual question as to whether l read  induces significant pain isn't that a jury question isn't that something that at this stage the jury should should decide no your honor again the question is always from the perspective of the reasonable officers would it have been clear that what they were doing violated here the fourteenth amendment which which distinguishes the cases this case two from the two cases that you've cited which were both fourth amendment e and that was found to be unreasonable we have nothing like that here the officers did not carry out mass arrests instead instead they chose to  use a novel acoustic device to aid in moving a large group of protesters onto the sidewalk that conduct simply does not reach the level of something like which again was even a fourth amendment case and the standard here is substantially higher but i have to agree with you that sound advice is better than bowen's in terms of moving people but true those injuries certainly though in comparison to some of the others injuries we've seen in the case law are certainly lesser and that is one factor this court considers but it is certainly obviously as a matter of qualified immunity  it please the court gideon oliver i represent the apple e's along with lana cohen and michael decker you help us on understand what factual disputes there may be sure your honor i think the court reviewed the complaint in the video and drew all the reasonable inferences and plaintiff's favor and as the court i think noted there are a lot of characterizations of what was going on words like chaotic escalating hostile violent volatile and to the extent that the defendants at the appellants are encouraging the court to construe the facts in the video in the ways that are not in the light most favorable to plaintiffs and in some cases in ways that conflict with the district court's description of the same events watching the same video they're inviting the court to resolve what are appropriately factual disputes that should be the subject of discovery and perhaps ultimately a jury complaint that's based on one second on one video where i could hear a police officer i do not think it was over the el route or any form of ample amplification in sum and substance giving what could be construed as a dispersal order it's very brief and it occurs at the intersection essentially as people are in the process of moving away already from the arrest they're going on into the intersection i'm i don't i don't think it was a general dispersal order where they were telling people that they needed to leave or leave the area i think it was a reaction to what was going on in that very moment in the intersection  and very shortly after those men to get back on the sidewalk the sidewalk went well when the court says what would the order have been if there had been i mean at that time it's or had been a general dispersal or wasn't to to go to home it was to get back on the sidewalk was not well that's where they had been and that's where apparently they were no longer at this point i mean the order though is get back it's not get on the sidewalk the initial that initial order that happens in that bill for that one second in that one moment is in order to get back and certainly not that's right it's not an order that says get on the sidewalk there were there was a  er to it was to forget now was it to disperse or was it to get what was what was the verbal command well there are about nine or ten instances of verbal commands that kind of repeated themselves they do there are slight variations but honor most of those directions are not dispersal orders they're not directions to get on the sidewalk they say remain on the sidewalk they're clearly directed at people who are already on the sidewalk for them who for the most part are already complying either complying with police directions or reaction people come off the side that's understandable that is understandable if that is an understandable direction your honor but at the same time the police as as they are communicating those messages to remain on the sidewalk obviously targeting people who are on the sidewalk they are also almost continuously firing the deterrent tone on the rad for about three minutes and we can talk about what almost continuously means but if you look at the end listen to the video it is not a constant three minute tone that's uninterrupted but it is almost continuous for the course of those three minutes as at the they're traveling down if you are if you are if if if the officers excessive use of force in the case i mean the fact that the police gave a dispersal order doesn't give them carte blanche to use as much force as was used in this case in order to effect to a compliance with the order if that's in fact what they were  intending to do or trying to accomplish which i think in and of itself raises questions of fact seem to want credit that they were using a non lethal force as opposed to bullets as the court pointed out yes i think that's i think that's right and  point the although the appellate say that the shocks the conscience standard is essentially you know more stringent and for from our perspective sort of insurmountably high the bottom line i i think is that the concept of conscience shocking can't be applied mechanically and it varies according to the different environments in which the alleged excessive force occurs this is a non prisoner sorry a non prisoner non seizure  context and and just as in johnson versus click justice friendly said that it would be absurd to hold that a pretrial detainees has less constitutional protection against acts of prison guards than one who has been convicted under the eighth amendment it would be similarly absurd that the same use of force is unconstitutional when a person is arrested under graham but constitutional when they're not a difference that this was the first amendment context absolutely or the first amendment context makes a difference and reasonable officers would have necessarily considered the first amendment context i think in reasonable officers in the position of these officers in the sense that they were acting on the basis of whatever training and knowledge they may have had whatever thinking they may have had about this device and you agree with that i would absolutely a great i agree with that your honor if you agree with that let me ask you this the complaint is full of allegations use of force policy was woefully inadequate so there wasn't training there wasn't training on deescalation adequate training on the escalation of the procedures for documentary reporting for since his were fragmented the use of force policy has begun imprecise providing little guidance to individual officers that was a report in two thousand and fifteen which you said was not improved by anything that happened after that and that your main claim against the city is not  lack training that is the that is the main basis of the mono claim that's right your honor but a complaint and so what i'm saying is if an officer is not given proper training and he any heat and it's not even listed on the use of force protocols under paragraph one of two of the complaint which include hand strikes fourth strikes everything else other than el read and wasn't updated later on when they changed it  so that it's still an as far as i can tell still not there as a as a use of force mechanism how would these officers to know what that what they were doing might finally the constitution let alone that would be beyond debate it's an obvious case your honor it's was it wasn't it should have been on what way was it up well obvious because if you look at it one way is if you look at the back of the device that they were operating if you have the perspective of the officer who is operating the rat there is a  in front and it has a red zone i mean it's a for your point is that these officers were one incompetent or were they knowingly violating the law i don't think you can make out the point that they were knowingly violating the law where they hadn't been trained at all and there guidelines and the warning label gave them these devices to use they had you know they were authorized by higher ups to go use them and they weren't given any training so how how how is it that there could be a plane incompetence when there's no training to measure competence against you know if you're given training and you violate the training or you're finally at the protocols then you're acting incompetently it seems to me that they need training to read the label on the device exactly my point right there in front of them was obvious they didn't need training you know a person doesn't need training to not drop a hair dryer in the bath tub you know they look at the warning label  and if you take the allegations you're going to have a heck of a case against the city for lack of training based upon these zero rights assuming that the one on one hundred x has the same features as a thirty three harbor which i don't know anything question than you know liability of the city for lack of training in fact a lack of training seems to cut against you if i could on the training point your honor it's absolutely the qualified immunity question is determine from the perspective of the reasonable officer with  the same training and experience as the officers the two officers who are the defendants here and it's not just i think of three or lack of training absolutely on it but i don't think it's just training and l rad use or training and use of force that would be relevant to determining the reasonable ness of the use of force in this case it would also be training and crowd and disorder control for example how police react when they're making arrests and there are perceived and actual threats people coming up to close it cetera clearly topics the police department has training on and as well as training related to policing first amendment assemblies and first a member principles we don't have a case that deals with those yes your honor i do agree and it's a novel device novel device but it's not novel factual circumstances in terms of police uses of force in the non a rest mass case that you have to deal with white against paulie i do your honor and my sorry the question was what's my best case well i mean i think my best fourteenth amendment cases are the cases that say that even a slap  robinson versus vir for example and smith versus half hollow hills and smith although the court says that the single slap in that case didn't rise to the level of a conscience shocking fourteenth amendment violation the court said there's no per se rule against finding a fourteenth amendment violation based on even a single slap so cases like smith robinson trapeze b z that was the fourth those are the fourteenth amendment cases that i would go to first if the court were saying where's the fourteenth amendment on kingsley as a standard but as your adversary points down kingsley's in two thousand fifteen case and while it may be relevant in terms of the first part of our understanding of the qualified immunity test as to whether it's clearly established law it couldn't be clearly established law under kingsley because kingsley is a huge it takes place is issued after the developments in this case johnson versus glick factors the need to first factor in the need to use the force of a collapse the first two factors i guess the need to use the force versus the relationship between the need to use the force and the amount of force that was used taking that personality proportionality that's right your honor at the intersection the need to use force was i would say minimal at best although not nonexistent the police have blocked traffic viewing the events in the light most favorable to plaintiffs by the time the plaintiffs and the rest of the knew the x one hundred is marketed useable policeman would have had to read the marketing materials such as average or sign i think that well it's not just the marketing materials it's also the instructional materials that come with the device which i think a reasonable officer who is going to operate the device certainly for the first time would be expected to read and or at least understand i mean certainly if the instruction manual said if you use it this way it's it has the potential to be dangerous or harmful or exist with the label which was right on the device they had in front of them that as well you don't think there's a chance that the officers might have recognized that this is this is a very powerful or might have thought of it in those terms absolutely not i don't think that's plausible certainly it's not how it's marketed even even in the marketing and materials that describe the sort of megaphone function that goes into how it functions different differently it's designed to predict sound up to two hundred feet at a maximum with a continuous fame of up to one hundred thirty not accused of violating any law they were not the police were not trying to arrest anyone that they were following the order to stay on the sidewalk before this device was employed with respect to some plaintiffs certainly there is evidence and with respect to the remaining traffic by the time the protesters got there neither plaintiffs nor other protesters were substantially interfering with the wrecked arrest activity that was going on even after bottles were thrown the protest was as judge sweet said broadly in control the officers used pepper spray and by that point people including plaintiffs were either on the sidewalks or getting there the intersection was substantially clear of non police persons substantially clear not entirely clear of non police persons but substantially clear there was minimal need to use any further force at that point which is when they first activated the rad ok and then when they first use the rad the safety threats associated with the arrests that were being made had already abated that situation was under control and the threats that were the target of the el rad or the i would use air quotes around threats those threats the threats that had already occurred at the intersection were not the target of the deployment nevertheless after what happened at that intersection the officers used the pain compliance tone setting aside the use of the sort of megaphone speaker they deployed the pain compliance tone indiscriminately purposely at least viewing the facts in the light most favorable to plaintiffs i think purposely in the i'll read at people on the sidewalk firing it as it as it is designed to go and it's sort of a home without individualized justification meaning without distinguishing between people in the beam or target area who are complying innocent people who are merely walking by observers who wanted to record what was going on etc so indiscriminately almost continuously over the course of almost three minutes the defendants fired the pain compliance tone fifteen or twenty two in fifteen and twenty times in bursts and the blasts obscured the verbal messages that were also being transmitted and and the l rad was also used pretty clear i didn't see them being obscured the commands to get to to get back you know to keep on the sidewalk or whatever they were saying i mean you know we could debate that but i guess reach is just duel between the complaint in the video on that score and i mean the court certainly can consider the video we conceded that the district court could concede the video below as long as it scrupulously scrupulously viewed the video in the light most favorable commands and it doesn't sense that it doesn't it doesn't necessarily make it so that they would the recording would be it would be impossible for us to discern the language that the police reusing on the recording that we're listening to but i do think i mean for me it was it certainly took for us but it certainly took a lot of time to get the actual verbiage that was being used into the declaration about mr decker's declaration whole point of what the police officers intended to do was get people on the sidewalk right get them out of the intersection a block blocking order to be ultra effect i mean i think those that's a that's a i think really that's a question of fact what with it went to the breeze and that's certainly what they say to them why would they point the  the sidewalk because you just pointed out those were people who were absolutely compliant with whatever orders they got could be because they were acting maliciously but that that is the shocks the conscience test is when people are exercising their first amendment rights and complying with whatever order of the police made and then they still get this sound that's that's the  deployed over those approximately three minutes very close by within ten feet of plaintiffs when again that manufacturers warning that's on the back said do not enter within thirty three feet during continuous operation in front of the rad there was no need to use force against people on the sidewalk who were compliance on the police were walking unmolested in the on the street than them and they were in the gutter as we used to say growing up in brooklyn they were walking where the cars traveled and there was there were no people there that's right except for other police officers and police vehicles who were on that street the roadway at the times on the roadway that's the first yes y e you know where they using were they using this device on their own police i mean they would have been subjected to hearing problems as well right i mean i think that's certainly quite possible i don't i don't see police that are i don't recall at this point seeing police that were directly in the cone that i was talking about to figure out from the video where the code words are at least from my perspective i'm sure yes well helpfully perhaps the corporations marketing materials have some graphics where you know they have they show you now rad and then they have like a green cone that goes through you know five blocks of times square so and then a moving am and you know i think the supreme court cases say that when you're talking about physical force it's physical just modifies you know it's not emotional or you know in a very sort of basic way another factor that the among the johnson factors is the extent of the injury and excessive force terms the extent of plaintiff's injuries in this case is relatively serious certainly as judged we found that each alleged injuries that go beyond the de minimus threshold the injuries were sustained involve last lasting effects and so i think that's covers the extent of the injury prong and then the fourth prying is whether the defendants applied the force maliciously and sadistically in order to cause harm rather than a good faith attempt to restore order i think the proof that progress is classic questions of fact that need to be explored in discovery which is why malice can be pleaded generally we did plead malice here general that generally and repeatedly firing the pain compliance tone of plaintiffs and others on the sidewalk using the l rad in obviously dangerous ways that violate the manufacturer's warning labels on instructions on the back of the zero rad could all be construed em i think that covers the johnson factors i mean it's i think it's also worth noting as the fourth factor that i think it's also worth noting with respect to fourth force factor that when force that is employed maliciously or statistically in the absence of a legitimate objective that that would justify it and when it results in injury that forces presumptively unconstitutional and conscience chocking that's this court from johnson versus newburg just if i could be brief i i am out of time but i'd like to get back to the if if i may briefly about how the officers were if if given that they we allege they didn't have training about this particular device how are the officers supposed to be on  notice the marketing materials for the one hundred x which you know is a sort of i think improvement on an miniaturization of the previous version that was purchased in two thousand and four and when you say improvement what do you mean smaller were mostly smaller is what i mean and for the for the use of police instead of the coast guard or something i mean i think that they certainly market the one hundred x for the same types of military grade area denial applications that the l rad was initially designed for use and so but but certainly part of the pitch to police departments is that the one hundred x is something you can walk around with as these officers did not you know not something you need to mount on the back of a vehicle but in terms of the marketing for the hundred x the corporation consistently says that what they call the warning tone or the deterrent tone can be used to modify behavior it can be used to increase force time to scale force escalation other product sheets use language like shaping behavior when the tone is used to close range protesters sense of discomfort cover their ears and move away and the marketing materials even say that when law enforcement agencies that have concerns about the deterrent tone can easily disable the option i mean i think all of those facts and there are some others but i think are the kinds of facts that show that the defendants in this case knew or should have known that using the l rad in certain ways certainly in violation of the manufacturer's unsure and different defense here  liable as opposed to the police department and as a whole for lack of training and knowledge on their part of the force component of this this device so that's that's that's where i'm i'm i'm sort first of all like we are you agree that we're looking at shocks the conscience we're not looking at of the reasonable this test we're not looking for purposes of this more of this of this particular aspect of the case qualifying i think that  shocks the conscience is the right test right now judge we didn't use that term in his opinion i think he did if i thought it was my impression was that he talked about it was being unreasonable or inappropriate that it was it appropriate when i think use those terms i don't know that he made a finding of shocks the conscience he i at believe if you can point that out if you did your your honor i think i could do that in just one moment i somebody is working out so that some some language like use the word on reasonable for example but my record that's right and then reasonable is the fourth amendment test i think i mean you know that's normally what you see in the fourth amendment whether it's reasonable or not it shocks the conscience is is analyzing the officers you know with what the officers did then it seems to me that might be error in his if that were all the court were relying on that i mean i would disagree but that might hypothetically be the case but i don't think that i mean certainly that's not the the analysis that the court under took was an analysis of the johnson factors the court looked at the court looked at and discussed all of the johnson factors in any event we're looking at this to know you know we've got the same complaint that he had from the same materials does it shows the cone of sound and says don't enter within thirty feet during continuous operation i think the videos here rebut any contention that this was continuous operation by the officers and in any event it's a constitutional  question and there was i don't believe that a diagram would put officers on notice that they were violating the constitution on the glick factors and i listened very carefully to my adversaries analysis and highly complex analysis and for the purpose of this qualified immunity appeal the question is would it have been obvious to the officers that what they were doing violated that standard it certainly wasn't obvious to me on the issue of the protesters on the sidewalk the officers here were faced with a fluid and ongoing situation the videos clearly show that there were  still individuals in the street in front of the officers even after they began using the device they also show not everyone certainly certain protesters step off the sidewalk this as a motion to dismiss your honor i don't read the district court is making factual findings if it did that was error this is a motion to dismiss there are no facts there are no issue of facts to the extent that this this court disagrees with any of the characterizations of the video this court is not required to accept them but based solely on the complaint and what even plaintiffs agree is clearly shown in the video the officers here did not violate clearly established law i would like to point out that this is the first police again i think the videos contradict any such allegation i think the video video one for example at minute two second fifty through minute three second this court has never held that's the only way you can shock the conscience but nonetheless it is the ultimate shocks the conscience is the ultimate increase so it's the increase not was it in reasonable was it disproportionate the terms of the district court used were th was a disconnect that it was inappropriate the court cited the shocks the conscience standard when talking about the general standard but the court did not ever hold that it shocks the conscience only that it was inappropriate in order to reach the shocks the conscience standard is going to be need to be so to grossly disproportionate that it shocks the conscience and that's simply not what we have here especially considering considering the additional layer of qualified immunity  conduct that is not afforded qualified immunity here and thank you thank you thank you both for your arguments we appreciate them we will the court over serve decision the second case on the calendar as i noted earlier u