judgment of disputed pack should have been looked at and should now be looked at in a life's light most favorable to the plaintiff who is the nonmoving party there is any dispute of those facts motion is to be and should have been denying there's a great deal of dispute as to the facts in this case and where there is not dispute there is clear video evidence that validates and verifies the plaintiff's view of the case i think it was on the scene at a very small area nations marched with a counter protest on july tenth ninety nine as a journalist i defied it's a journalist acting as a journalist carrying a video camera make conducting interviews et journalist journalist you give an extraordinary position of respect the authority of privilege in the society they're allowed to go into the white house for press conferences they are allowed to go into many places that the general public is not including to properly cross police lines as long as they do not interfere be a privilege for journalists has been upheld over and over in both their right to be places and their right to have their materials privileged  months before this demonstration it was only ever in force once against the counter demonstrators and against mr leave in this one case never used before and never used again percival second vol yes the car show called car the lane a month prior to this event so your claim is like you were absolutely in addition we watched the videotapes last night there are  where other journalists are shown on the tape much closer than mr leave t v cameras for crimes who for a few sticks for individual videographers from underling entities were right in the middle of the poll nice line right in the middle of the demonstrators much closer than mr levy ever was one of them was told to move back he very carefully backed away precisely as was relieved that he was not arrested the law was only applied don't know who those people were but i will represent you watching the tapes there are does of occasions where people show closers a woman in purple we have no idea the identity of who shows up over and over again standing between the police and the demonstrators people who crossed the barrier food ensure he didn't have a specific function he did tell demonstrators to get back he never interacted with another journalist and that's clear from the video it's clear from his deposition b never told anyone else and he walked over the only terrible us or anyone else other the only journalists he told demonstrators to get back and he pointed out officer kelly and mr leave other individuals and but it is true that mr leave was some distance away was not interfering with simply getting the same kind of camera angle that the others were getting but staying for the back and he was single only conclusion we can draw about him being singled out he was told to leave he complies he backs up but he says i'm i'm here as a legal witness with other words i have a right to be here and and there is a great deal of case law that says that you cannot arrest someone for her believe challenging the police there's no dispute that he was complying with the order he was told to leave he has a good journalist moves away while videotaping but he says i'm here is a legal witness and he wasn't moving in the direction of the t v is moving in a different direction he did the same thing the other journalists that he moved away from the scene if the concern is that he's in the middle he could be in the middle of a situation where the police are dragging people out of the crowd and the rest of them he moves away from that he still videotape he doesn't want to back he doesn't want to turn around both because he's being confronted with a police officer because he's doing this job  was not there was never said that he was arrested for not complying the officer conceded in this deposition he was complying except for the fact that he challenged cept for the fact that he said i'm a legal witness and the next thing on the tape is record that support that the parade was caught on hence you have about a minute left and you like to reserve or have me continue to use this time i would like to use about thirty seconds and then reserve the tape evidence it's also clear that the hold that  there's nothing that i am aware of in the record regarding the card line parade or or event a few months before and what the police did during that particular  event there are as far as i can tell no medical records in the record regarding any injuries i think the affidavits of mr levy farting in the record in which he discusses injuries i think the evidence with respect to the risk is that he went to love from britain and the moral hospital in moscow at the gate after the arrest was treated in the emergency room x rays there was nothing found and that he was correct i stand corrected i think there are subjective comments by mr lee but there's no medical records and and he himself has stated in his deposition which i think is that before the court that he's not been treated since that day after the after the correct in this case no trial you heard mr gill this is comment that there are questions of fact what's your response the standard is not whether there are questions of fact question it's the standard is whether there are material questions of fact and the the court cases both from the ninth circuit and other cases are replete with cases record as a whole does not demonstrate any material issue of fact on any of the claims before the court council would it make a difference to this case legally if there were proof that predicate that if that were proof of his motivation if he'd said i rescued him because he had a smart mouth clearly that would make a difference in this case right up i'm not sure that it was ok well rapes mediately upon being told that i believe will live there quite a long way away and there are lots of well there is at least one camera sticking right in the l the parade is moved up and so obviously you have to be relying on the fact that there's a ruckus going on at this point in order to be concerned isn't there so inference to be drawn that a jury can draw is what he said rather than the claimed motivation which we know have closed talk was the reason why they took action the action they did against him i don't think that's reasonable inference i think it would be totally speculation and that's why the courts have said that we don't look at the motivation behind the rest we look at the objective facts doesn't offer even testimony all the time about people's facial expressions that question of anger physical way they respond those kinds of things in criminal cases even though we may have i'm not sure that that again goes to the issue of general journalistic privilege to violate a law that is it medically constitutional and it is clear from watching tape that mr leave intentionally got under the tape and went out into the middle of the street th a different situation than the cameramen who are standing on the curb stepped off into the street and are told to go back we have mr levy who is alone as far as i can tell from the tape standing in the middle of the street and then moving toward the the blockade and at that point is told to get back in as the chief judge in this case has that he did not go back to where he came from he did not go back to be on the to comply he was he was responding to the order get back and he was getting back he was probably going in a different direction but he was getting was he not backing away he took a step back and then also  in verbalizing that he was stating to the officer i have a i have a right to be here to sensually and that's why i think the courts are very reluctant to get into these regarding how much force is excessive or not i think based on all of that there is certainly so i think the summary judgment is proper the videotape can be i think the situation is objective that the officer object if we have probable cause that the officer objective leave use within me range of reasonableness in terms of force there any other urgency he carefully kept this distance second of all the horrible lane the incident was is that late in the depo transcripts that are attached to our response to summary judgment as and third twelve times between forty six fifty five and fifty fourteen and one thirty seven and one fifty on plaintiff's main video tape you can see other journalists who are closer then there is with her there is a dispute as to fundamental material facts and you do not  reason you can see that he is arrested in twelve other journalists or not is because he says i'm a legal witness thank you counsel your time has expired thank you very much so the case just argued will be submitted for decision and