method please the court i'm john williams on behalf of giovanni and donna the plaintiff however i think this case is the first occasion this court has had since scott versus har to consider the role of video evidence in a police misconduct case and the court below and i think the defendants here have relied heavily if not exclusively on a body cam video produced by one of the defendants apparently it was a body cam on the body of the defendant dunston who himself did not refer to it in his affidavit but the defendant de andrea submitted an affidavit saying that a true copy of what had been recorded on dunstan's video the case is obviously very different from scott versus harris in two significant and i submit dispositive ways first in scott mrs harris video indisputable he was complete it was not challenged either as to its completeness nor as to its accuracy as to the challenge to completeness this is basically because the plaint happened isn't what i see on the video well that's part of it but it's also because when the members of the court look at the video as i'm sure you have you can see that th possible arguments and maybe you're making both of them one is an argument that there is a disputed issue of fact over whether the video is authentic whether it's been tampered with or caught or somehow does not it isn't it's fake news or alternatively that the video is fine it just doesn't capture everything because  video always is from a particular angle on this sort of dark and that sort of thing is that the argument because as i understood it the point is saying this is this is tampered with this is  not an authentic video actually we are making both arguments because both arguments are supported by evidence in the record that what supports the the alteration argument the the plaintiffs sworn claim that it obviously does not depict what happened and that i submit shifted the burden to the party offering this evidence to to present evidence of some kind that it was in  fact altered and that could have been done in either of two fairly obvious ways either by the affidavit of the officer who had it on his body and a chain of custody set of f an affidavit on chain of custody or alternatively by expert testimony neither was attempted by the defense or but it's nothing to kidded by the fact that the one of the police witnesses says this is the authentic copy of the what actually occurred but was captured by the camera but that's not what he said he said this is what this is an accurate copy of the original but there no evidence whatsoever as to whether the original had been tampered with but i think that perhaps more dispositive is when you actually look at the video you can see that it doesn't show the contact with the wall upon which both sides rely it just doesn't show it but what is the contact with the wall the thing that rather than what the officers do well that's where we have disputed testimony the officers say we gently or without using any inappropriate force brought his body into contact with the wall while restraining the defendant says they slammed my body into the wall  inflicting pain now both sides agree he came into contact with the wall but there's a disagreement about the manner in which that happened and the video doesn't resolve that dispute because it does not resolve that dispute the court is is left to say look this is a jury question we have disputed evidence we have to find in favor the nonmoving party and that's where we are here and that's the most dramatic reason why this case is nothing like scott against terrorists and it seems to me that the the defendants in the court below placed an almost talismanic reliance on the fact that well there was a video therefore nothing to argue about and that argument does not depend on any claim that the video has been tampered with that's correct that does not because you can just you can see by looking at the other thing that it doesn't show is the manner in which he was restrained whereas the defendants and the plaintiff contend that both of his arms were seized you can't really see that you can see one defendant holding one arm and the other arm can see it all you don't know what's going on so it's a dramatically different case from scott and i'm not aware of any court and i know this court has never taken video to that kind of extreme that you're being asked to do in this case so i submit that scott is no help to the defense and that we are forced to rely on the usual default rule which is when there's a legitimate dispute about a material fact the motion should have been denied and that's the case here what proof did you offer any contrary evidence you see i don't understand that that's what i understand if your other point is that it doesn't show what you just can't see what's happening isn't that inconsistent with the idea that it's been altered you can see a continuous course of action you just don't see at all perhaps because of the location of the camera or something like that i'm just puzzled as to why you want to take on this this burden of suggesting that the video is not simply incomplete because there may be things that are outside the vision of the camera but but to say that it's actually been tampered with when there is no nothing like expert evidence and to say that it doesn't show something that happened is not the same thing as saying that's been altered well i agree with that judgment but i just seems to me that this is not a situation where i as the defending party have any particular burden that the issue was raised in an appropriate way by the sworn testimony that played if it wasn't it wasn't addressed well i know but if you but if i come in and say  able video well in that respect what i would say is that a country watched somebody makes a claim like that under oath all it's necessary for the other side it was to come in with some of the proper kind of a proper evidence i suggest a chain of custody evidence expert of it wasn't done i don't need to do that i don't need to take that burden because when you look at the video you see that it just doesn't do what the defense that defendant said what was the scope of this coverage if any during in this matter i'm sorry what was the scope workstand of the coverage of this case the extent of discovery was obtaining the underlying videos we did obtain a total of four videos and interestingly enough of those four videos three of them the three not offered by the defendants and their motion began after the encounter which seems odd to say the least and quite is it true that there was no evidence that the tape accurately reflected what happened no i would disagree with that your honor the the the obligation we had was to under the rule of nine nine a one of the federal rules was to present evidence that the video was what we contended what we claimed it is and so we had an affidavit from officer  your mind did the that constitute evidence that the video accurately reflected what happened absolutely under a rule nine zero one that is all we needed to for it to be admissible evidence and under rule fifty six once we submitted that evidence of the undisputed facts it's our contention as the district court i think properly concluded that if the plaintiff wanted to challenge that based on the authenticity or incompleteness at that not observed on the medium of course i'd concede that your are the body worn camera has limitations it has a limited scope of view and so in a dynamic event like this says the officer is moving around it has its limitations and so i would respectfully disagree with plaintiff appellants argument that we relied exclusively on the video quite to the contrary we relied on the totality of circumstances starting with the nine one one call which after all this is an incident that ended not with an arrest but with an emergency psychiatric evaluation we had severe significant evidence on the record admissions from the plaintiff his own sworn testimony that earlier in the day he had in fact made reference to using a baseball bat that's what prompted the workers on the crisis hotline to call nine one one and request a police presence when they went to check on his welfare plaintiff admitted that when they arrived they asked him to stay outside the house and he turned and tried to reenter the house plaintiff admitted it's at that point that he is briefly detained against the wall perhaps more significantly even than the body worn camera plaintiff admitted that when he was pressed against the wall his face his head did not come into contact with the wall the only part of his body that made contact was his chest and i would submit that that admission of alone refutes t claim the plaintiff's whole theory of the case that he was thrown with such force that it almost killed him that simply impossible when his face and head didn't hit the wall what the body worn camera does is it provides context and add some color plaintiff admitted he had no cuts no abrasions he was never handcuffed he was not punched he was not kicked there were no weapons that were drawn he was taken to the hospital by ambulance at the conclusion of this interaction for an emergency psychiatric evaluation at the hospital he was not examined for physical injuries because he had not you have the police reporting of the incident the three page police report was part of the record unopposed and it corroborates entirely the what is depicted on the body worn camera well all of your representation is of fact were in the rule fifty six can be heard on the recording not just the video you can't see them well but you can hear what happened that day the thread about the baseball bat and so with the body worn camera does is it puts everything in perspective and it flat with regard i played the video for him and you know he had this fantastic story that it doesn't show him being thrown against the wall and that's kind of the point because it didn't happen your honor he did testify three times during his deposition that quote he almost killed me he almost took my life away with that brick wall the guy almost took my life away that your honor is a false narrative and what the question i'm not interested right now is whether it's false or not but it mr williams understandably makes the point that that that's a question for fact finder to make i'm wondering whether one of the undisputed material facts that came up in the new fifty six motion undisputed facts are are are those primarily that i just recited that there was no physical injury no cuts no abrasions and i think when you and the and the district court had the evidence from the hospital before it there was no relevant evidence from the hospital the district court was aware it was it was undisputed in the rule fifty six statement that the only treatment at the hospital was for the psychiatric evaluation for no out there on the body worn camera we our research did not reveal any reported decisions in the second circuit in which this court has addressed the utility of a body worn camera in the police use of force contacts it is cutting edge technology and law we did cite two thousand and sixteen district court decision from the southern district of california emmons v city of escondido primarily because there are some parallels it's another case use of force he noted that while not a panacea these recordings provide significant color and context to events they aren't technological aid to better serve the community by protecting both police officers and the public because they provide an accurate depiction of contacts but between police and the community provides an objective means for evidence gathering and serves as a valuable training tool for police so your arms we don't suggest that they end every case or that they are a be all end all but they put things in context and there's no basis to challenge this i think ides here want to make this the great test case body cameras but it seems to me that the body camera as you've acknowledged doesn't show some of the crucial incidents and the real point that you're relying on is ultimately the  admission at a forty nine his deposition that he didn't have any cuts and wasn't believing well i think you have to look at the totality of the circumstance i suppose you could you get something out of the fact that no one introduces no one including you i take it introduced before the district court any medical records from the hospital director so there is no affirmative evidence of any physical injury and there is the dialogue with the defendant question you didn't have any abrasions or cuts as a result of this incident correct answer there were no cuts no question you were not bleeding and certain no i wasn't bleeding but i could but will really hard trust me that's that's the is there any other evidence that there was affirmative evidence that there were no physical injuries no you're right that's what we're to that's that's the key here is  it can't be excessive force if there is not so much as a bruise that anyone can demonstrate that is crucial however i will say this this is one of the rare cases within three months of the filing of the lawsuit we moved for summary judgment with our answer and submitted the video believing that it really did provide more information than you would have in the video provides more and for i agree with that that provides more information but i you know i don't know why either side wants to make this the story of videos either you know make life so much more easy for everyone or or they don't and when the question is what is the video show and what is it not shown what's the rest of the evidence as usual well typically in these use of force cases quite often we will not move for summary judgment if you have an affine who swears they were injured this makes it a much easier call for us to present the evidence to report i see my time's expired so if there are no further questions we respectfully request that this court affirm if we do set aside the video issue and address this case under traditional principles the reasoning that underlies  the view of defense for arms as such as that involved in this case that they don't seek summary judgment and unreasonable force cases is precisely that the absence or for that matter the presence of blood or of bruising is not dispositive in an unreasonable is there is any evidence whatsoever that mr a don't know was injured in any way yes i mean what is that if you don't testify that he would he felt pain that he was thrown against the wall and in a very forceful way and the fact that he felt pain if there was no reason to use any physical for of there's no right now that's a whole different issue if there's no reason to use any physical force and your argument is no physical force is permitted then we're off to the other race that mr tolbert wanted to talk about which is the history of what led up to this incident but that i didn't take that to be the primary position of the point of either the point it was saying even if it was appropriate to use physical force to wasn't going to go in that he wasn't given the option that he was cooperating with this investigation he came out voluntarily he engaged them in conversation at no point did he resist in any way shape or form that was his testimony and therefore to hurl him against the wall whether or not he separate injuries certainly was and reasonable if you want to say they touched his arm said wait a minute please find but that's not that's not what anybody claims happens here what they claim happened here is that he was grabbed from both sides and either placed or thrown hard against the wall and that amount of force is under reasonable if the circumstances are those that were were testif by mr o'donnell whether or not he had made a telephone call to this mental health service saying what do i have to do to get attention down there come with a baseball bat under the circumstances it was simply not called for and therefore a jury could have determined that it was unreasonable given the usual jury instructions in unreasonable force cases it's just not appropriate to decide cases like that on summary judgment and it rarely is done thanks very much was thank you reserve decision