robert plume the district court's decision was based entirely on video which the district court contended or found contradicted the allegations of plaintiff's complaint this was a decision on federal twelve c and the supreme court's decision in scott v harris mandates that a court can dismiss on the basis of video only  the video so blatantly contradicts the plaintiff's account that no jury could believe it here the district court took ambiguous video and interpreted it in the defendant's favor the court went further and found things in the video which the video does not show up scott is clear that even with video all inferences must be drawn in favor of the non movement which in this case is t of in addition question was first touched and lifted up by the protesters rather than the police on the other side of the barricade as that matter oh it mattered to the district court  and it got up here matter first and the video is not that you know quite clear that at least after it was first touch it was at least subsequently touched by both protesters and police but actually the video desire to pick up and lift and take away the barricade whereas the plaintiffs contention is and it's consistent with the video that the police picked up the barricade and used it as a battering ram and raised it up it so that it would hurt somebody that there well the what happened to the beret barricade after it was first used as a battering ram is not what injured the plaintiff it did in fact end up getting some spun up and back but the plaintiff was injured by a combination of the impetus into the crown of the barricade pushed by police and also the broadcast spraying of pepper spray which blinded him and minutes it made him unable to know that's after he won't back away from on the command who was stop resisting and get away from the bear i mean they're they're trying to are that's not what the video shows of you show this particular group of people like iraq as well there there is disorder in parts of the park but the question is i mean part of the park right on both sides of that barricade is pushing and shoving up right around there if you review video cage which is a close view from  videos i'm sure there are some seconds of some videos where people are standing quietly you're suggesting but there are certainly scenes where they're anything but standing while maybe different people maybe there somebody has to quietly other people are below and with what the police did if you know someone standing where judge hand is is over there is doing something that merits the use of force suit the way should use force on that person and not on yourself where and the language is slightly broader in the cases but you know what i'm referring to now what happened that night who knows ultimately there were scores probably hundreds of people they are witnesses there are videos from different angles there may be other videos that you acknowledged in your papers in the district court more effectively incorporated by reference was inappropriate and given the sufficiency of the allegations of the compl would go back and it may be that the videos in question will prove to be very important evidence maybe that will ground summary judgment one way or the other maybe that will be very persuasive to a jury that ever gets that far but we're nowhere near that that's correct right night that argument is made in our papers now i looked at what you said in the district sure because i think that's really pivotal and you were a little less fulsome perhaps than i just was and i can certainly see how the district court planned up where it is the only reference i really found was at page two in your memorandum of this in the district court documents seventy two in the district court docket and you said that the complaint incorporated excuse me from a video not presented by the defendants exhibit no and then you said the defendants cannot claim therefore the second amended complaint incorporates any other videos all bunch of video and you were objecting to the consideration you had some obligation to censor otherwise you're probably stuck with so i'm focusing on the scope and sufficiency if your objection distr ambiguous what what what would you say was it jack well the images were attached to the complaint for the purpose of identification there were john doe police officers and  that well they weren't they weren't and next into the complaint to the extent that they were referenced it was you know we were i think three stills from those videos that were next for the purpose of as they are all videos of what happened that night some of them may have been edited we don't know because as i mentioned in the brief the police videos sometimes are edited for reasons that  are known only within one police plaza and sometimes they're not and i'm hearing some things may be missing but nothing's been handed out i don't aware of any reason to think that video has been manipulated no you get your  position i get the police department staged a phony mom and and got cops acting as cops and then created these phony videos no no no no no your point is really different your point is ok we've got two or three videos from particular fantasia points for particular parts of time it's not everything it's limited by the radio interview of the camera for each video to maybe other videos there in addition maybe witnesses who who have pardon and information that go to the merits of your claims apart from the videos and that we shouldn't be why is that if a fragment shows scene from which no reasonable jury could fail to find that an officer had a reasonable belief in the  you had people who were doing something wrong and people were not doing anything wrong and they were in the vicinity of a a on i think it's called a french barrier that was floating around in the sky they all could have been injured and police could have been injured too when you agree no no so if we had if we if we had a french barrier over your head with cancer my foot on that wasn't the part that i was disagreeing with certainly you could be injured by a falling barrier but could you use it if it was exigent to get people out from under it that way so that the police can as you say push down upon it which is of course we were barry you want to be it want to be on the ground who would be pushing down and other people pushing up upon it why is it inappropriate to use some harsh measures in order to assure the safety the police are moving you back in a battering ram if the police are moving you back you move back and if you don't you're in trouble if you're at the front of the crowd and there's a mob of people behind you and somebody comes at you with something immovable the ability of the people to move back those who are in the front depends upon whether people further back who perhaps can't see what's going on move back in give them space is never look let's just imagine hypothetically that what happens is this barrier comes down there's a couple of cops at one end of the barrier they see your injured plaintiff and you come up with a witness somehow who says two of the cops looked at your guy and said that'll serve you bastards right i hope it hurts about that that would be indicative of  so i mean it was a mess there's no question it was a mess but the point of my hypothetical is we don't know from the videos well of the pertinent facts we don't know whether we know  moment right you're talking about excessive force yes i mean by the excessive force in a way they handle the barricade and if you look at video of for example what i believe twenty minutes in zero seconds you'll see one of the named defendants in this case christer vega pick up a barricade and attempt to hit a protester in the face with it because that protesters angered him with his words and so you know you also can look at video kate three minutes and thirteen seconds and you'll see you and your wife and you will see police officers taking the same barricade that ultimately caused the problem a few moments before and pushing that into the same group right so the police were you know they weren't issuing instructions please stand back they were doing this and they were injuring people by doing that indicating you want to get out of the way that i would argue that that's an inherently wrongful way to to deliver an instruction i understand heard that that's you you know what they were doing and i also accept the the argument at the moment that a person in the front row would have kept difficulty at even asked the question for us was not a correct legal ruling obviously you say you know obviously the answer is no in there or disputed facts based on the video the video doesn't show everything the things the video does show it doesn't show all that clearly if we don't know who did what to whom and we don't based on the video of how this barricade got moving to begin with then we we cannot usurp the role of the jury  using if the if the barrier got moved to begin with by police who moved it forward from their position and backward to the position of the mob then then the re was nothing that they could do these individual defendant police could do that would not be excessive force if they had to use pepper spray in order to return the thing to the ground the  they picked it up to push and injure the people standing in front of them and that is that's a delegation of the complaint which is not going to be the case if they move back if they were able to move back which is again a presumption which scott says that inference is must be drawn in the favor favor of the nonmoving unless the video is so blatantly is it clear your position that they should have simply ordered people to move back well that would have been a good first step there were no orders to disperse i sing from the the your bridge issue in which it was argued that with the pandemonium and everything else going on only people in the front could hear one or two back and if the people in front a crowd of people in the back they couldn't move back so verbal orders don't don't cut it or in any event the police if they learned from that case could have concluded that a verbal command is not going to be efficacious and that other measures might be required that's would be something for a jury to determine i am familiar with that case and i believe that the the basis for the ruling simply was that when they walked out onto the roadway of the brooklyn bridge that the protesters should have known that absent instruction to the contrary they were someplace they should not be i also deposed chief esposito also in that case perfectly sensible observation that when pandemonium reigns  esposito in that case and i asked him why he didn't put a line of officers to peep prevent people from going onto the roadway and his answer was because then i couldn't arrest them so they were facts of the people that bridge in a car might have wondered why there was a certain police officer but in this case the reason that the barricade got up in the air to begin with was because the police lifted it off the ground and so the police activity was not for the purpose of returning a barricade to to rightfully beat the police activity was lifting the barricade from where it should rightfully be and using it for a purpose which the director of the disorder control unit and this is in the complaint stated the barricade should never be used morning your honour's may please the court my name is money west for the apple a city of new york the question in this case is not whether mr plumet did something wrong the question this case is whether the police officers use of force was objective reasonable taking into account their perspective at the time without the benefit of hindsight and the video footage shows us the asked that question is yes because a video footage shows us that so clearly mr plume i want to keep it out but he can't first because he didn't object to the video footage below except for video i which was excluded but that's not exactly accurate is it their brief page two said to the second amended complaint incorporated still images only from f and g and from a video not presented by the defendants on this motion attached as video no the defendants cannot therefore claim that the second amended complaint incorporates and heat of the videos now seems to me that the objected to everything with the exception of the still that were attached to the complaint on pretty standard grounds your honor this is another case of which i see a great many in which the corporation council makes motions to dismiss that really should be made a summary judgment motions and then gets on happy when the results go against them and it's so much easier to do this in an appropriate way but this is not a case where the point of clearly objected to all the video  footage just read it i understand your honor but there's no question that he incorporated stills from some of the video footage that he had and relied on that video footage in drafting his complaints that's sufficient to bring it in for a motion to dismiss that when deciding a motion to dismiss the courts may consider any written instrument attached to the complaint statements or documents incorporated into the complaint by reference and documents possess when you use partial documents or when you put in partial documents you bring in the whole so if i mean if it wasn't incorporated then it was at least in tyrol to the complaint he had the video footage the case that said if you if you use statements from press releases or from newspaper articles yes then you bring in the whole because a matter of getting something in and into evidence at  yes and i will note that an earlier version of the complaint had one hundred stills from all the video footage like an earlier version of the complaint had one hundred original there was a in between the first complaint and the second amended complaint which is the operative complaint now it's yeah it's it's not in the appendix but it's include you know point of relying on video footage to all of the video footage and that's how it came before the district court in the us what do you say to to the idea that it would be a reasonable for police to on i think it's it's the perps the police officers that's relevant the question is would ask what should they have done and you can see throughout the video footage that the barricades became a focal point for the protesters they were dismantling the barricades they were moving the barricades and the police officer handling of the barricades in either if and for you it isn't and i can give you the frames at fifteen twenty five to fifteen fifty five and then again at nineteen minutes to do you  right i mean there are there separate metal pieces that are sort of connected together and you can see that they're being piled and none of them you can separate them apart i think that's right i'm not sure of the mechanics but you can see that they're being separated and it's and so and so in the context of what was going on if police officers were trying to maintain a perimeter for the protest but with the use of barricades and it's difficult to know what else they could have done in that scenario you do hear  plausible in the context of the video footage where you see these barricades being dismantled piled in the park being used by protesters and then you see police officers pushing back in the second thing is you know the subject of intent of the police officers is not the relevant question is whether what they were doing was objective lee reasonable so i mean to the extent that we're speculating that maybe they were angry and the question before the court is whether in light of what was going on there they're putting their hands on the barricade was objective we reasonable i think the video footage shows us that the answer to that is yes  i also want to mention that when you read the complaint the events as described in the complaint are so far afield from the video footage and what the video footage shows us and that's r that was obviously important to the district court where the complaint describes is that mr pugh might enter the park student peacefully with others until he noticed some activity and went towards it to see what was happening and the video footage simply renders that version of events implausible it does indeed blatantly contradict the complaint when we see in the video footage is essentially a riot there is an all out brawl going on and that context is what we think is a relatively small area i don't know if it is but along the street and you see more of what's going on in the police side of the barrier simply because the one i looked at the ones i looked at were taken from the crowd side you don't see what's going on beyond the first couple of rights of people within the park up i mean it's not politically inconsistent i mean what what you're inviting us to do and what this opens up is trying cases on the police and on and i think that's problematic furthermore your argument about the still us picking up the whole of the video i think is based on cases that dealt with quite different press release a b and c and that was false and misleading because it failed fully to set forth the true facts when you look at the full text of the very document that the what with what happened in zuccotti park place a little bigger than a half pile of sheet of paper that came out of some p r office that involves hundreds and maybe thousands of people at different times a whole lot of activity only a tiny fragment of which is caught in a video or six videos and i am concerned about extending a principle that makes perfect sense that came off a video we're now going to consider the entire video and we're going to consider it not just for what has on the video but for the truth of the allegations of the complaint whole of the documents written documents but i think that the same principle applies which is in your green by now maci because as somebody puts in a still or quote they are saying that this is this is a document on which someone can lie absolutely or honor and there's not been any challenge to the authenticity of these videos which is what scott we harris is about these are videos that were unquestionably in the plaintiff's position that they looked at and their complaint that's the relevant standard for whether or not they are incorporated by reference or integrity to the complaint so i think that they the same logic is is is that it that it should be you know authentic it should not be doctored or altered and that the plaintiff should have had it and relied on it in drafting his complaint that's the universe of sort of a did the requirements for bringing it into the motion to dismiss stage and all of complaint we do that trial when the exhibit is off the question here is can this be presented to test a complaint well it's not it's not unprecedented that video for ages used for example and garcia veto the brooklyn right your honor and i will there is no specific case no there is not there there's only the analogy to cases where plaintiffs have not been permitted to cherry pick from documents in this case supposedly these four cells were included for identification purposes that's not unusual you don't need video or of photographs to identify police officers and it's simply should not be the case that you know and this is in chambers this court said that the rationale for not allowing the documents outside of the pleadings to come in is that plaintiff should not be unfairly surprised they should have a chance to challenge the authenticity of the talking and none of those concerns exist here there's no question that they had the video that they looked at it and that they relied view of a fragment that would have of what happened from a particular vantage point with a particular cam resolution with a particular sensitivity to sound very incomplete and maybe the whole thing looks different and maybe that goes to the weight of that goes to the way that the court views the video that we are but that's that's where trial and somebody says yes we've looked at the video we were standing on a different our and from our vantage point or maybe even somebody has their own camera or cell phone and and and their views different that that it just worries me that you're confusing trial from complaint but the judge is allowed to look at video to determine whether or not it contradicts the complaint that is the bottom line  stills were deemed to incorporate f and g then we would be in a situation where there are some six videos of which the court is only going to consider two and there might be a seventh or in a thirty ninth video out there somewhere that isn't in the record yet and i think this is an excellent reason not to stretch this point beyond where it's been put in the area of documents and as to the plausibility i would like the court to look at a one eighty four which is an image it's a still from video k which if it's considered and it shows a young man with his hands in the air with a stream of pepper spray going to require into his face he had his hands up this year or if not your plate but the same spray going over the young man's shoulder at the planet when you have a crowd how are you going to spray one person and not somebody else you that's you don't you have to use rank in order to save people from a danger then what if the police it said we don't need to use spray let the damn thing fall on all those protesters who cares you'd have a very good case wouldn't you to repeat it was the police that put the barricade in the air and asked that and if the police and said let's not use pepper spray let it fall on them now learn a lesson they will be doing this next time you have a very good case wouldn't you i it's not it's a hypothetical it's not part of wrecked it's a hypothetical with one hand they