could we hear next from the parties in burke verses new york city police commissioner may please the court kathy park for the apologists whose park i don't know what you want i think the podium comes down a little bit if it's easier for you you your honor what isn't disputed in this case is that the protection of the president is of utmost importance and that's what defendants were charged with doing during one of president obama's nighttime visits to midtown manhattan this court should reverse the district court's decision requiring defendants to go to trial for the on the spot decisions that they took that night for the president's safety the police permitted the protesters to fully engage in their express subjectivities at a location that they chose and all that the police required was that for the protesters to stay in that location until the president the crux of the district court's decision was that fact issues regarding the defendant's subjective motivations precluded summary judgment on plaintiff's constitutional claims are there also factual questions about why the hour and a half detention was necessary as a matter of security for the president and why it was necessary not to allow any of the protesters to leave during that time that seemed contrary to what the standard practice was and in the patrol guide that was no the record at this point doesn't have anything about specific threats and it seems very unclear what police objective was served by declining to let persons leave the pen could you speak to that hair my understanding is that there are factual issues as to the defendant's state of mind regarding why they took the actions they took and whether they believe that you know i mean even as as an objective matter why as a police process matter one would have closed the pim didn't seem to have been standard practice and i'm concerned about whether we can evaluate a subjective matter and we cannot just evaluate it as an objective matter when you're considering the cop particular context of this case which is the protection of the president which is far different from most other normal pleas duties  in the yes but they're not allowed to leave you have to explain to us why reasonable well and well as this court recognized in martin the  decision security planning necessarily requires officers or reasonable officer to consider the worst case scenario here the police not only had to consider the risk that the protesters might have themselves or the fact that a protest might have turned violent at any point but also the fact that there were a number of security concerns by even even if the protesters themselves were in danger that may have inadvertently interfered or hampered with the officers ability to to make the location see and that's the fact that you have a large group of protesters clustered together making it much more difficult for officers to detect suspicious activity for four hours well and because a special needs doctrine which is the doctrine that we're relying on here is is a bounce in tast in that circumstance it would be a much closer question but that's not what happens in this case in this does have an inadequate or very sketchy description of why from the active policing point of view the pan needed to be closed and no individuals would be allowed to leave  you have to also consider the fact that the protesters were holding signs playing for scaring the view and hearing of the police officers and if you if the police were to allow one or two or however number of processors to leave that designated area it would have required the police to divert their resources it would have affected and there was no telling whether that would have been part of a court whether all of the protesters might have wanted to do that at once i thought this group that had been given one designated site and had left it and gone to a site where they shouldn't have been that's right lisa lampe them to stay and that's right your honor and that was a very important security concern that the police a reasonable officer would have been entitled to consider in just charging we're just explanation for why it was subjectively reasonable as a policing matter to detain all the individuals and not let any leave i'd point to inspector lola's statement who was the n y p d sector commander for the area in response to the question is there any reason you know people in the demonstration years would not have been aware to leave while the president is at the sheraton not that i'm aware of we can all imagine these things and obviously presidential security is of utmost importance but i'm i'm struck in the record by the absence of a coherent account or perhaps i've overlooked something so i wrote you will point me to the explanation the strongest piece of evidence that we have in their record is detective two two pieces of deposition testimony of inspector hart's testimony explaining that at the point when the protesters had already defied or had already refused to settle into their designated protest area and had reached the past an area which was directly across the street from the hotel he testified that while at that point there was moments there only moments remaining before the president was scheduled to arrive and because of and this is also cited in our brief si t because of a number of security concerns they felt that it was just that on the at that and it was recent it was they decided it was the best plan and to to let them settle into this contained area and we also have difficulty of the police in detecting the security force that they are any suspicious activity and when you have such a large group but i would remind this court that in in fourth amendment analysis and in qualified alice's what is what is dispositive is what are what are reasonable officer would have thought not what the police officers or the town or that particular defendant actually thought at the time when he was mak subject of motivations of the defendants precluded that's what i'm still looking for because i'm struck even though it wasn't controlling and wasn't regulation i'm struck by the patrol  saying that one should be that police should allow people to leave a confined area you know according to their best judgment but that that was ordinary practice and so this was a departure from ordinary  and i guess we are to infer that those justified by the fact that the president's security was is that right that's right because the patrol guy doesn't address the specific context of presidential security and as we explained in our brief and there are just a number of there are a number of heightened concerns that are involved when when you consider that the task of maintaining security for the protection of the president and because when you consider that hassle on with the fact that there was no use of force in this case none of the protesters were handcuffed they were not searched or question and they were able to express themselves freely during the entire length of time that they were in the past and the fact that they had the police had actually accommodated their desire to be closer to the president shows that at least some of the protesters had asked the police officers whether they were be allowed to leave bathroom breaks or how long they would have to stay in the pan and the video evidence clearly shows at least to some of the protesters they were told that they would not be it was not there it was not clear how long they would have to stay in there there'd be no bathroom breaks and those protesters still enter the pen anyway just as the records show with their protesters who  declined no your honor actually all of the video evidence doesn't show any all the record shows that all of the protesters didn't stay in the press and there is no indication that any of the protests and the are facts that are either part of the record or facts that judicial notice can be taken as this is and happened on november thirtieth two thousand and eleven right that's right all right so the night that the rockefeller center the bomb threat and the other fact is that this happened on november thirtieth that was on october eleventh two thousand and eleven approximately six weeks earlier that individuals marching under the occupy wall street banner had taken the brooklyn bridge is that correct i'm not sure of the exact date of my understanding is it is around the time that that is what had happened in your honour's i will reserve the rest of my positive of the gravity of a threat alone cannot be dispositive of police of law enforcement means that from the city of indianapolis be edwards what we have here is we have the police department having  frozen between fifty one hundred people in for an hour and a half without a justification and they have all chose to be there but they are absolutely but they went into this pen and the pen was closed i mean they were not forced in any particular place i mean the police did certainly move them in that closer and the place where they could be if they wanted to be closer was the correct that's a the police as you know from a from our brief did choose that location for them and it wasn't like they stormed the pen and like rand there were signs and were in any way violent to get there there was a pen earlier as there as the record reflects that there's some dispute and i think this is important as i think this is a disputed fact there characterizes that as an act of some sort of aggression or some kind of like they have now done something that would entitle the police to police them in a more aggressive way if the record from the testimony of the plaintiffs  shows that they many of them had no idea there was anything why is that even relevant because we have to look at this from the position of an object of reasonable police officer and from the recent will police officers point of view they knew that the protesters  assigned to one area and were not heeding that and were ending up in a press pencil whether any individual knew it or not i don't see really why that affects our analysis but by missing it's because of how that was done or if they were being placed if they immunity and at a minimum they knew that the protesters had been designated morny area and whether they were just dissatisfied with the north there was some other opportunity to get closer they avail themselves of it and that you know that caught in the context of other occupy wall street activities in the preceding six months could need a phrase concerning the police mind about whether they would abide by police anybody who's been on a new york city street when the president is in town knows that these people though were in a pit they weren't just you know on the sidewalk or something and so the gravity of the complaint is that they were not allowed to leave was going to happen at least until the president was out of the year they're moving to moving them into that no issue with it is purely they're not being allowed to leave and here's the reason the question was how did you know they were going to leave to go away from the get even closer to the press well the video reflects that there were dozens and dozens of police officers there the protesters could have been allowed to want to time to time and any possible  individuals leaving that area and number of police would be or not to deal with your clothes it's it would be or for other security reasons related to the president and your clients presented them with an additional one so i'm not sure you can say well you know there were hundreds of police officers the year they could have sported these people they would have had to have other posts and other responsibilities so i'm not sure why you can say that the failure to do that case that's the sufficiently close to the police to the fact that their conduct could not be tolerated there was there was a there was a lot there there was there was a lot there let me see how i can i going to try to take in pieces and by miss something please i'd like an opportunity to to address them first with regard to the policing question that your honor raises there was a detail that followed this group up to this location so there were policing resources which were assigned to them specifically and they entered into an area by the shared hotel which also had significant placing resources for the presidential visit so you have to know all of this is in the record and yet you have two full sets of policing resources and the reason that you that in the record shows how they could have escorted people out individually it's shown because they let tourists out traffic on seventh avenue was so the protesters are processed avenue there's a zone kind of on that corner and then the rest of the block back to broadway is frozen so all they had to do which is what they did in my view about how i understand the video what they the press in the tourist is they basically walked them to to broadway in times square right that puts them blocks away that's what they did with terrorists press and how they know people are terrorists are present different question but they have the ability to do this and that is shown because they did it and they had an hour and a half to do this i mean it wasn't like that needed to be done in ten minutes we don't dispute that when the president's moving you know what if there's a presidential motorcade in front of you of course you can freeze that area i mean like there's no that's not what we're disputing it's purely that there was no justification and more to the point there's no justification in this record because the issue with how policing decisions gets made and i think this is one of the kind of communication issues with the district court's decision where there's much talk about subjective motivations i think really what's being talked about is what is in the mind of the person making the decision because the entire fourth amendment analysis has to go facts known to decision maker and of course and then at that point it is an objective analysis right the defendants have not put forward and cannot put forward anyone that says we made this call because of this reason they have people that say you have to do that well the reason because that's how you make it police and that's how forth the whole fourth minute analysis in my view operates i mean facts known to the officer i mean that's davenport that saucer be cats all the analysis facts known to the officer it seems to me are the the president's coming here you you are and i don't mean this at all to meaningly a group of protesters whose object is to convey a message as forcefully as you can without being violent or potential i mean there's that potential right to the president and we have given you a place that is closer to where the president is going to be than than you had originally ha and you immediately took took up that opportunity well it was so what else has to be in the mind of the police officers well you need if i mean i'm not trying to i know thank you mister yeah what the issue is if they had put forward an individual say it was officer mcnamara that said i closed the pen for an hour and a half because there was a group of seventy five protesters that made me nervous about the president's safety so i went and did that i think you would have a good argument for what if you have it what if you're mr mr mcnamara it is sort of a laissez fair cop out that they are on this great force but and who just didn't care very much but you know the chief said let's keep these people together and i decided that's what i was going to do though these would all be very cases that would cause us a lot more problems than the one before your honor's because the city does not have a person that can say why they did what they did would any reasonable officer have fields to understand that what they did was unconstitutional because you know the supreme court's told us over and over again the last couple of terms that qualified immunity protects  but he plainly incompetent or those who are willfully violating constitutional rights of course that's what the courts the courts i mean the i think i read your honor's question to be asking me for a case on point is that a they correct but the here's the maybe the disconnect that we're having is our position is that because they cannot put forward the decision maker the one that actually did this thing they are unable then to put forward what that person because if they had the person who said i knew these five things because of these five things i did x those append we would have one case that's not the case before your honor's the case before your honor's is we did x they were protesters and then after the fact they talk about reasons for why they could have done that we know not what they knew they knew that these people had been assigned to the area we knew we know that the police knew that they had not stayed in the area we know we know the police knew that they'd been put in the pens and that at least some of them were told that it was not clear when they would be allowed to leave me we c on and on we we know that their objective was to confront the president there are many things they we know that the police knew that there were a lot of things going on in the city that night including some concerns about what was going on twelve fifteen blocks out we know that that there had been concerns about behavior of occupy wall street protesters in other there are there are no cases of that talk about a special needs seizure doctor so the idea that they have cover from second circuit precedent or supreme court precedent for a special needs spent many pages talking about an arrest doctor and that's not even necessary this doctor and does not yet exist in our view there's all of these special needs search cases there's drug test cases there's you know the whole litany of cases cited by the city's brief they can't point to a case where there's a special needs seizure so the idea that we're then being put forward to say why can't you find a case that says a special needs seizure is viol of the constitution well our answer is look it meets all of the elements of a fourth amendment false arrest claim they knew they were confined they didn't consent to their confinement and it's then incumbent upon the defendants to put forward a justification they are asking your honour's to create a special needs arrest or seizure doctrine and that this is the parameters of the special needs exception and exceptions to the war requirement are not done lightly i mean this is not something that maybe an officer thought one thing or another thing this is asking for an expansion of the fourth amendment that has never been done before and the reason that it's clearly established but why isn't that why isn't it reasonable doesn't your argument have to be it's unreasonable for officers who are protecting the president of the united states not to think that that is the number one priority essentially enabling them to do something that i'll grant you that it was a seizure i'll go with your right it's a seizure but that don't you have to show that the officers it was unreasonable for them to think that and there has to be a case out there that says it and i can't find one it's unreasonable for them to think that protecting the president isn't the highest priority thing to do that evening we certainly don't dispute the importance of protecting the president i mean i would i mean of course so the juxtapose those and you have to find something that says under all the circumstances here what the officers did they they should have known was absolutely was absolutely unconstitutional i mean they let sick people out and they felt them find find assistance they'd of course lots of people i think it's important to look at seventh avenue i think this is really one of the things that i i under seven you the place seventh avenue the street that is going because if you get if you look if you look watch the video that street is open and open in a there is traffic going back and forth i acknowledge traffic in people going back and forth to pose the same kind of risk as a clump of the fifty to two hundred people sitting there who want to confront the president but other people are moving they're going they're leaving the language of confront and confronting with a message i mean not there's been no there were no allegations of physical violence or anything like that to me to ok i just i'm just i'm just i'm drawing and i think it's not persuasive contrast that you're because people driving through the area and not stopping i suppose that someone you know in the i think they do have protocols at some point for eliminating traffic but they pose different kinds of risks for us that that's certainly the defend position if you were going to do something untoward and towards towards the president being in a group of highly policed occupy wall street protesters probably not the best way to do that not to say that i mean if they were actually somebody that had ill intent in mind and they knew the president was at the sheraton hotel driving down seventh avenue that would seem to me to be something that would be pros much more of a risk that just shows there was an unreasonable i and i start certainly i certainly acknowledge that the thank you your honor i just want to touch on a few brief points first on the absence of a case of applying the special needs doctrines a seizure of cases first i just want to note that the checkpoint cases are cases involving seizures where the special needs doctrine had been applied second and there's no dispute that the the protection of the president is a special need and when you consider that the question then becomes what are the reasonable steps that the police can  and maybe reasonable to do that but can you comment on the absence of that kind of explanation in the rebel part of it is because and this is maybe underscores our point why these types of cases really shouldn't be litigated  it's a sensitive nature of what we're talking about here this is closely held information the plans that the steps the people who are involved in securing the production of the president and and because of that as part of the challenge and indeed and defending these cases and because obviously there's a concern that exposing these sensitive matters will have a chill law enforcement actions that aren't that may be necessary to take the president  claim we agree with the court or we agree that purely objective considerations are at issue there but i wasn't when i was responding to judge carney's question it was just in response to the idea purposes only question is whether a reasonable officer would have been able to infer these conclusions from the facts apparent to them which are not dispute it that bad that the absence of that kind of evidence is not enough to preclude summary judgment  in this case just quickly on my adversary had mentioned that this process was not the best way to handle these this concerns are at issue but again we're not here to discuss in hindsight what the best practices m been but whether but the police officers did here was within the range of acceptable reasonable measures specially considering the fact that they were making an on the spot decision where circumstances were unexpectedly unfolding in real time whether that is still within the breathing room that is that is afforded to officers in these positions under the qualified immunity doctrine that we had spent most of our time discussing the fourth amendment doctrine just very