the next matter on our calendars people of the state of new york and others verses can its great and others may please the court paper for the attorney general federal state and city law have protected safe access to reproductive health care clinics for more than twenty five years that district court's decision and this case ranier here which includes running up to patients as they are approaching the clinic standing in clusters outside of car insurance as people are trying to exit including with small children approaching patients with very small children and speaking to the small children directly now i understand that take and analyzing each of those elements separately might lead to a different conclusion but all of these questions are very context specific and all of this behavior occurs in a context in which  when a student has reviewed a lot of the video evidence still digesting it but can you point us to the specific parts of the record that you would have us look at for the proposition that you just offered certainly i size of the signs and exactly how much space they take up on the sidewalk now this is a narrow sixteen foot sidewalk in a new york city street it is it has people contained on it but it also has these multiple three by five foot signs and defendants are using clinic exhibits thirty nine dollars is another incident is that car example that's an example of for independence standing outside of card you are as a patient and her partner trying to get out with a child and a stroller now at the district court concluded is that the fact that patients were ultimately able to access the clinic means that obstruction did not occur but finding is not consistent with this court's case law the decisions and scott and operation rescue national or the language  the fact that they were able to get through these crowd of protesters push away the signs for sure the literature but make it to the door means that there was no violation that's their from the facility unreasonably difficult or hazardous those terms do not mean do you not only include conduct that actually blocks passage to the door or precludes people from entering unreasonably difficult it's fairly capacious language and that is so much continuing to press a position after somebody says i don't want to hear it violate the statute that's one of the things which i think is very close in this question of between st amendment rights to get your point of view gross and the right not to be statute properly interpreted the st amendment to say i continue to press well your honor just to clarify i think you're asking about that follow and harass provision of the new york city which has distinct elements from the abstraction provisions i have that's three statutes so with respect to the new york city provision the follow and harass provision what the defendants are doing here is not just continuing to talk to people they're following them at extremely post distance as within we to follow what the district court found in terms of credible statements and so on of a district court because screw did certain things all together is not being represented and there's a question of whether they were meant to be representative or not and therefore should be considered court said that certain statements give once again to clint it's a clarify i'd do you have a response to that and i would like to address that i'm sherri holdings here but all of the evidence that i have been referring to so far is the evidence like the videos or the photographs or a defendant own testimony or into fun and own notes that the district court did not make add very sick credibility or reliability findings with respect to so all of the evidence that i have mentioned so far is evidence that the district court considered reliable or credible and i would like to return to the evidence sherry issues but just to finish answering your prior question and the following and harassing conduct here is not just continuing to speak to people it is following them very closely being within their personal space reaching out and trying to force literature into their hands what the follow and harass provision for hits is a scope of conduct one of the one of the categories of harassment that the statute in point breaks from the penal law is a course of conduct or a series of and thirty five of such a video exhibit thirty seven is another video where there have been altercations that have occurred between the defendants and the patients you know and will have to come back to wherever bees words about now lives and guns and you'll get yours essentially are essentially transcendental things or whether they are threats but there are you know when you object to what somebody is doing and make your point you will always alarm and annoying i mean the st amendment to some substantial extent a law is you to alarm an annoy something in a st amendment right to say you are doing something to someone who i consider to be a baby alarms are not always that person i mean there's no question about it to be perfectly clear that what we are talking about here is the defendant's conduct and not the content of their speech we're not saying that it is the content of their speech that alarms or annoys people we are saying it is their conduct which includes physically being people that is just yeah i mean i've spent a good amount of time with the videos and i'm having difficulty seeing how you really incompetently come to the conclusion that our standard and operate in operation rescue has think the time that i've spent with the videos thus far i'm not seeing that i see very quick entry into the clinic from a fifteen feet sidewalk crossing the sidewalk there are protesters u sually outnumbered by escorts who are helping them and helping the patients into the building so so what am i missing and we are where exactly did the district court go wrong in the factual determination so several answers to that operation rescue national sites list of conduct that could constitute obstruction and some of the conduct includes interfering with pedestrians as they approach the building shouting at them and standing in front of them with no indication that there is some sort of of a buffer zone so we were specifically addressing obstruction but you were addressing obstruction in the sense that there was believe that there as a challenge the district court's finding of obstruction as well and what this  such as and this is a quote stepping in front of us warrants using his sign to prevent us warrants from walking past him positioning himself next to patients automobile so that they have difficulty opening their car doors following patients to and from the entrance and running at patients and yelling at them constitutes obstruction and i think we see evidence of all of that type of conduct here and once again scott also does not have a need to minister acquirement that the district court seems to and for so for example on page forty of the district court's decision the court is analyzing exhibit one hundred and thirty eight dollars and knowledge is that one of the defendants was standing in front of the patient and the companion and the patient on companion had slightly altered our path to get around him and what the court found is that there is no obstruction because the patients and companion were able to quote walk around ok that's fine and on to the clinic door but that seems inconsistent with scott i think it is also inconsistent with what the statutory definition of unreasonably is blocked the district court relied heavily on the fact that the photograph did not show any patients approaching the clinic or being blocked at that moment and my question is is the fact that no actually walk any particular person from entering because i think this court actually made a finding that no one tried to enter at that time well but this court made clear is that so long as the defendant acted with the requisite intent and the conduct constituted obstruction within the meaning of the face the fact that there was a violation here irrespective of whether any patient was or was not precluded from entering we understand the record the surveillance general lasted over a year my right about the that's and that was every saturday honor martin cannon i'm here on behalf of ten of the thirteen defendants to greet defendants i'm with the thomas moore society i do want to comment very briefly i only think i only have six minutes on some things that the state has argued here  they want you to look at the size of the signs and and the crowded picture on the sidewalk but it's very important to appreciate and the judge in the trial came to appreciate the fact that these pictures are taken down the length of the sidewalk there's a lot of  foreshortening that you can that you that you can forget about a one hundred feet long or something and there's four or five signs there altered it's not really a problem at the very thing the photograph walter no no no no they're not altered it's just that that picture correctly that was the two signs on the one side and the other side look like takes up two thirds of the sidewalk as i look at just eyeballing it takes up a good part of the sidewalk but it leaves five feet or so in the middle that is about as wide as a lot of city sidewalks anyway and very importantly as to the question about whether you can block somebody who isn't there all the evidence in this case suggests that if somebody had come down the sidewalk or people would have stepped aside anyway if it was necessary that there's an awful lot of evidence from the defendants from themselves what they were trying to do of tag teaming of doing any number of other feelings which if we for a moment got out this particular context we have held can be done i mean i'm just looking at a for circuit case which involves people protesting a circus and in that context you know when everybody's much calmer because it doesn't involve abortion the question of what it is of it you can do to make your voices heard without harassing somebody that's my basic problem that that we we tend to look at this case these cases in terms of what it is it is being protested against instead of this very difficult question of what is an appropriate st amendment protest and what it is instead arrested i think an important response of that your honor is this the tagging thing is kind of a strong approach the the the basic thing is that's going on there is that each individual protester has his own right to address a person and it's not foreclosed by the fact that somebody else talked to him down the sidewalk of a question of individuals things then i have some problems with what the i have to defer and i'm happy to defer to the district court but i will only defer to the district court if it didn't if it took into account everything it should have and hasn't a district court here in several instances excluded consideration of things that it ought to have no i don't believe it has and finally on the on the tag team thing that's a strong statement strong way to describe it the important thing is whether it's one protester or two protesters that trot down the sidewalk is very short it is so brief that that whether people approach a person you know one after another or not can't make it long it's about seventy five feet and it's about ten seconds and i don't think there's enough time to morph into harassment now as to the the court's rejection you were presenting jasmine land know that one of your seventeen live witnesses the need for the hearsay is attenuated plainly and very very importantly the the the recaps were demonstrably unreliable just as the court found with some of the witnesses the patient experi experience questionnaires were here say they were leading they lacked context they assumed facts not in evidence and they were incomplete the state's witnesses had chosen which ones to provide and which ones to no will not consider visa at all i mean that can go to the weight of the evidence and yet the court said that they would exclude all escort recap because  some of them were contradicted well why do you exclude all of them because some of them or contradicted or why do you exclude all of the protest questions because some were because they're not representative will that who cares about whether the representative of others or not don't you have to give some value now once a court does then i defer to it but shouldn't i insist that the court at least look at it and give value to some of the things you never saw it i think she did that a very narrow question i think she did it and i think part of it is she said she didn't and we know she said she wouldn't consider than what all i think she said she gave them no weight and that's a decision that's within her discretion she does it based on her findings that the witnesses that are typically the authors of those lack credibility and very importantly do what you know you have just said when i think is correct that you cannot gauge everybody who is protesting but the fact that mr george for instance did block something and you know i'm going to grieve you with you cannot just say everybody's a but the other side applies to you cannot ignore all of us court comments because some of them are self contradictory you can't ignore the fact that the ones that were presented because  that the court was responding to the fact that they were that they were recaps and the patient questionnaires were very biased in the way they were framed up and very importantly i think she was responding to the fact that we had the video when the video was the elephant in the room it kind of takes over the case as it should in most cases that ultimately you decide things in a way that it can justify say will not look at or will give no weight to individual testimony that is not itself self contradictory because other people who are on the same side were self contradictory or because of or maybe other testimony that would come out the same way it may be that in the end the courts should this situation of what we would do in a case and we have cases human is i believe is a case of the th circuit which was not an abortion case about what you take into account when some parts of a test as well people's testimony ain't any good whether you could you know were very rest i think you see what i'm saying and i see what you're saying but the court was very considerate of these things i think she was responding aid to the fact that we had a ton of evidence and a lot of witnesses so the hearsay problem is big i've never been a district judge i don't there be a district judge no district judges  extraordinary really difficult i'm not in any way blaming this wonderful district judge i'm in a different position of saying in circumstances of that something that is  think not what would be standard abuse of discretion the thing is the judge was really responding to the basic quality of those documents and that is an important part here it and that's what she has a trial judge is doing and and i think it was within her discretion especially since we have the witnesses and we have the video now i believe just an escort recaps some of them involved some of the escorts who testified yes i believe most of them involved probably only the escorts that testified and i could be wrong about that but the live witnesses here yes anything important in a am here on behalf of miss braxton in this the land he referenced earlier yes i'd like to ask you a question about i think it's exhibit twenty three yes you're in this little land in the pink jacket yes he walks right up to the door there's people  saying it happened i'm sure i did so i will go back and look at that but i'm not familiar with missile land doing that in that video well if it's not exhibit twenty three it's another exhibit that i really watched this morning where she she's wearing a jacket and she goes right up to the door trying to either hand literature i don't think she had a song she was just trying to hand literature to one of the patrons of choices if that's what happened your honor then i guess that's what happened i don't have the video called up in my mind to be able to tell you that did or that did not i are not i can't answer that question for now if there was a lot of evidence  think that i might have an advantage here that also calls cause me a disadvantage but you just saw which is i came to this case a little bit later so i was not present during the preliminary injunction hearing so i am not necessarily from a passion level questions about some of the language which isn't you know yes we all all die some day statements which are certainly ok as against statements about bullets on a sidewalk a knife on you or vs court will be gone when you come back that is these statements sound to me more like threat then just statements of a sort be aware of it you will that we all die and have to face or make or which are certainly ok and i'm trying to sort out what kinds of statements one can make in a context of this sort that are fretting when we know of it people have been shot or knifed and so on in this as against statements and protected by the st amendment in any context is to say something you you know if you don't do my thing you make at night something we suggest that you can't do  you can say you'll go to hell and you may be right but that's a different statement yes i understand your point and i was not present when those statements from a i'm sorry i can't you know i just don't  which one of you who is well i'm not sure anybody could who wasn't there and that really gets back to the basis of what this hearing is about for me to say what they meant would be speculation what we have here is a want to i'm not so interested in what the person who made those statements meant but what objective lee a statement of that sort would be taken by an individual because what we have here is both a subjective was i frightened and that i think there's enough evidence of but that's not enough it has to be something that is objectively frightening to someone and that's  question that some of these statements make me worry about but that's a question which would ultimately determined by the jury we're here because the court assessed the statements and made a finding of fact at fourteen day long hearing after reviewing seventeen witness live testimonial events i think two hundred and thirty exhibits that included eighty videos off the top of my head and after analyzing reviewing all of that she did not find that the attorney general had met their burden in order to have a primary injunction issued what i have seen through all the briefing and what i heard this morning from the a g is there in here attempting to relate a gate the hearing that took place were her finding of fact that there was not significant danger that whatever was violent it would be repeated is something which we all great deference to yes right of that's exactly right the attorney general will still get to make their closing argument just like they did already here this morning in front of the trial court but could finish a sentence at the very least when we get back down there the purpose of this hearing here is determine whether they have met their burden injunction and that the judge abused their discretion based upon findings of facts which were clearly erroneous or improperly assessed evidence they have not done so and you should affirm the district court thank you that's why you have three minutes us court leaders and compiled by us court leaders including several of the witnesses who testified but what they reflect is a collection of experiences and observations by numerous escort volunteers that are reported to the escort leaders following a particular saturday proven by the video associated with the very tall i'm that the describes isn't that correct that is current your honor and that brings me to my next point which is that blanket rulings are just favorite and can be reversed even on an abuse of discretion standard and one of the reasons is that a blanket ruling such as this one which a lemonades whole categories of evidence really preclude since district court from determining whether evidence corroborates each other so with respect to some of these question of injunction is how likely is it will be repeated after a court says you can do this you can't do that and then what is it that leads you to say that we should reverse the district court's decision in saying this is not something that is they said that they overwhelming majority of conduct here because they found that we could not meet our burden to show a likelihood of success on the merits and then they leave it leaving that aside the district court did make specific findings of obstruction and clinic interference with respect to three defendants and found that those defendants were not likely to repeat their misconduct and i think one of the reasons why that was an incorrect determination is that those defendants are here today saying that the slow walking is permissible that it is not obstruction there are numerous cases from this court and others that have found that a defendant's insistence that the underlying conduct is lawful is sufficient evidence that they are likely to repeat that conduct in the absence of an injunction to return just to the patient questionnaires for a moment i think many of these patient questionnaires and the record actually did corroborate the escort recaps and ask her testimony with respect to the situation that is happening outside of this clinic that let's appoint the courts and several exam of evidence the opportunity for corroboration is lost that's your point exactly your honor and i think one of my colleagues mentioned that there was no need to consider this documentary evidence because there was all this live testimony but the district court disregarded the live testimony of nearly all of our witnesses so there is really no opportunity made a credibility determination with regard to some of the statements of your witnesses and on the incredibles and that right that's not disregarding that is not disregarding but i do want to be very clear that the district court specifically declined to fine that's those that those witnesses intentionally lied that's of page six of the district court's decision now an intentional law i might in some cases warrant the to the recaps and the questionnaires in the district court said this is not the usual context in which we would consider hearsay evidence because there's been for a long period of time here there's been substantial investigative work on both sides and i have a lot of li testimony and i have some difficulties with these questionnaires and these rehabs in the ordinary case we would say this is abuse of discretion review the district court judge made a call so i'm hearing so so if you can probably  two points to address specifically why it was an abuse of discretion legally or in this context and why this evidence was so necessary given the extensive video evidence the live testimony in this hearing certainly with respect to your st question i think this court's decision and mullen's holds that hearsay evidence is properly considered on a preliminary injunction and the context of my lines is especially relevant here because not borne out by the case this is a pulmonary injunction hearing this court held in mullens that hearsay evidence is properly considered so long so long as it can be considered and is available and it is here and with respect to why the evidence was necessary i do you again think the corroborating element is important that the videos are helpful they obviously do exist but once the district court this regarded all of the witnesses testimony that documents  documents were really the only thing left to corroborate the videos and it's really the combination of all of these adventure area holdings that made it impossible for their work that made it difficult for them to start for that tourney general to prove its case now to be clear we do think that based on the video evidence and photographic evidence and the record we have established a number of our claims but we think the evidence sherry rulings also provide an alternative this is suppose to do with view the two were  goes back to the district court and what we can say we follow what they did certainly your honor and again to be clear only one defendant submitted an affidavit attesting that they would not engage in one particular type of conduct and that a slow walking so the district never made a finding about likelihood of repetition with respect to any of the other defendants or any of the other categories of misconduct that are at issue here so we do think it would be appropriate for the district court to decide those issues and the st instance and we're not asking this court to issue an injunction but we are asking for is for the district court to have an opportunity to evaluate all of the evidence that is appropriate step by the correct legal standards to that evidence and with respect to i understand that this evidence is outside the record but this conduct is still continuing and this conduct is continuing and the findings are using the district court's decision finding that this conduct as lawful said justified and i understand that but i think that i