refused to review a videotape of plaintiff's murder interrogation that was attached to our motion to dismiss illinois statute mandates that if you are going to interview a murder suspect it has to be video recorded otherwise any statement obtained from the suspect will be inadmissible this requirement helps protect not only criminal suspects from illegal tactics but also to police officers from exaggerated and fabricate claims and this conduct mandated videotaping fits perfectly within the doctrine of qualified immunity which is supposed to protect police officers from the substantial burdens and exciting is a political issue and the supreme court has repeatedly stressed the importance of resolving immunity questions at the earliest possible stage of litigation including on a motion to dismiss when there is a videotape that is critical to plaintiff's coerced confession claim because it shows exactly what occurred in the interrogation when it's referred to in plaintiff's complaint when the video is reviewed at length by the appellate court in the lower trial court and there is no dispute as to the authenticity or completeness of the video this court is not bound to accept plaintiff's characterization of the videotape in the complaint but rather can independently review the video and make its own determination of what occurred during the interrogation in order to determine whether the defendants violated any clearly established law right but that's discretionary the judge and here specifically declined to refute the video   other permissible rules but she declined to appear and she can find herself to the pleadings because it was a twelve b six motion that the qualified immunity defense was raised and the complaint pleads that the defendant was impaired at the time of the interrogation that attack and alcohol use that is all correct except that the standard review for this court is to novo on a motion to dismiss and that's based upon federal civil procedure ten c principles of qualified immunity as well as scott versus harris which it's well settled in this circuit that a video that is attached to a motion to dismiss which is considered part of is considered part of the pleadings when it's referred to in the complaint and central to the claims which it is here this is consistent with principles of qualified immunity requiring the earliest resolution of the claims in conjunction with the supreme court's decision and scott first harris the scotus a summary judgment case that's correct and scott didn't recognize at what point in time it was at the in the litigation but rather it focused  whether or not there was who were shooting whether or not there was i mean going to the whole issue that she was unwilling to go in at that point saying it's this is we've you know we're talking about two qualified immunity trial on that much as summary judgment the video eliminates any factual dispute and in scott the court did not have any issue in exercising jurisdiction when the parties disputed what happened in a high speed car chase because there was a dash cam video that it not been doctored or altered in any way and the court could decide for itself whether the officers were entitled to qualified immunity based on the contents of the right in that case the video turned what might have been a factual dispute into a legal question because it conclusively refuted everything that the person who led had been involved in the chase there had said about the chase i i don't think that this case is similar because a videotape is not going to conclusively show unconstitutional impairment there's a lot that would have to go into that kind of determination where you have to determine whether or not the officers are entitled to qualified immunity based on the lens through what a reasonable officer would see and what is blatantly contradicted in the by the biddy o from plaintiff's complaint is whether he was highly intoxicated so intoxicated to the extent that they shouldn't even proceeded forward with the interrogation what's also blatantly contradicted by the video is whether he was so psychologically coerced to the point that he passed out and was also  blatantly contradicted by the video is whether there are false promises of leniency those major three things are all clear on the videotape and this court should or crisis jurisdiction video will will show what tactics were used during the course of the interrogation and it's conclusive on those issues but it's not conclusive on the question of his impairment by drugs and alcohol and we do know that and it's undisputed it was alleged it's apparently and you know just disputed that he not only collapsed but was unconscious and when he was revived was vomiting and and then was taken to the hospital at the conclusion of this interview so there's significant evidence of impairment and that in the video disputes almost the entirety of all those characterizations  to remember you're looking at this it doesn't dispute that he he collapsed and was unconscious and had to be taken to the hospital and was vomiting etc the way that it's referred to in the complaint makes it appear that due to the interrogation tactics he was paid he passed out as a result that he passed out thirty eight minutes after the officers left and if you see evidence of physical impairment from drugs and alcohol i'm setting aside the interrogation tactics which is a separate issue the video will show what they did or didn't do as a matter of interrogation tactics and whether it was coercive in that sense but if he's impaired and that's part of this claim so that he could not fall in terribly get a confession that's another matter and that's that's part of this suit but when the video won't be conclusive on that when you're looking you're qualified immunity and you're determining through the officers eyes whether or not the reasonable really believe that the person was so highly intoxicated that he couldn't move forward on with the interrogation that that is blatantly contradicted in the video he sits there he's he seems to be coherent using gauge he talks to that through the answers and questions and no reasonable officer would believe that he is highly in talks so highly intoxicated that they shouldn't move forward with the interrogation what we don't know what he was doing before and during the arrest and what the officers knew based on their interactions with him at that time that the time period interrogation is not exclusive here they there's there's no allegation that any other interrogation tactics or or what i'm not talking about is that's right terry geishas i'm talking about what what they what information they had about his level of impairment if any before the started we don't know any of that we don't have any medical records that would tend to show how high are drunk he was and we just don't know the answers to those questions based on the stage of this case but in perhaps you when the sun summary judgment but we're on top of the six or even twelve b six when you look at the video and you look at it through the officers office there is no indication from a reasonable perspective all from a reasonable officer that they shouldn't continue forward with the interrogation based upon how they view this particular suspect at the time see that i'm good morning your honour's and may it please the court my name is steven r and i represent daniel jackson the illinois appellate court vacated jackson's wrongful conviction after reviewing the video at issue in this appeal and concluding that it showed an was concurring opinion writing such right so well so i i believe the the majority opinion agreed with the current opinions analysis of the video the point where would that be it's i believe it's at the end of  three judge's opinion where where he says the issue of coercion is not properly before us but i fully agree with my concurrent colleagues ok not properly before us let's not overspend as well and that's is exactly opposite what appellants here say it shows shows that there's a factual dispute here and there's a factual dispute about what the video itself shows both with respect to intoxication as a judge cites mention and with respect to tactics of course the video will show what happened during the interrogation but for example the the appellant's in this case say there's no evidence of a false promise of leniency on that videotape that's not true at all the video packed with evidence of false promises of leniency they tell daniel jackson during this interrogation that if he admits to doing it in self defense he'll walk free mcdaniel on the interrogation tape at about an hour and five seconds twelve b six motion if that's all there were to this claim then we could decide this as a matter of law if if all we had was that videotape of what tactics were used then we would be presented with a question of law under scott and plum half so on takes this outside of stance and and and when we couldn't resolve the qualified immunity claim as a matter of law at this stage but we've got this issue not impairment  these defendant officers at least two of them right more involved in the arrest as well as the interrogation while they were certainly closely involved in the rest the fact the matter is not in the record all of the evidence about intoxication that you would need to properly present the case and i want to push back a little bit on the idea that you could decide this if it was only tactics at issue perhaps at summary judgment where the question is whether there's a genuine dispute of fact under rules fifty six you could consider as the screen court didn't scott a video and i asked does that video objective lee contradict an issue of fact the plaintiff is trying to raise i don't think that you can do that with all videos and i think there's something magical about a video in all cases because the type of claim that issue in this case whether coercive tactics were used in a two hour long interaction it's much different in the type climate issue and scott where the supreme court the plaintiff was trying to raise an issue of fact and said there were no cars on the road and i never swerved at any moment and the supreme court said look at this video there's cars on the road and you're swerving all around right but the video tape interrogation here resolves any factual dispute about what happened during the interrogation what was said by whom when and what the responses were mean you can't argue with that and i know what it is a pure question of law whether the tactics were unconstitutional and so even on twelve the six assuming that the district you know assuming the videotape is properly  considered at a twelve b six which probably is even if there's not a mandatory duty to consider it it could conclusively resolve this claim but for the question of his impairment right and i think on the question of impairment the video itself doesn't answer all questions about impairment in the interrogation because it's just one view of the event there's of course the things that went on ahead of time you know did the officers who were conducting interrogation learned that when he had been picked up he had been picked up a party where everybody was doing drugs and was intoxicated could they see in his eyes that he was completely blitzed could they smell the marijuana in the two cups of whiskey that he had had i don't i don't think those things are clearly resolved by the videotape and i think further discovery is needed but i also don't don't think that the issue of tactics is resolved and i think that that's demonstrated by the fact that different people have reached different factual conclusions about the same videotape it's really not factual conclusions different legal conclusions about the constitutionality of these tactics that's a legal determination and judges disagree about that sort of thing all the time well i won't push it further then but i think that on the issue of intoxication it's critically important to this interrogation i think the and i don't want to distance myself from the video too much because i think it's it's going to strongly support daniel's claims at summary judgment and at trial not only are there false promises of leniency but but there are tactics this court has this court has said repeatedly that when police conduct influence as a rational person who is innocent to choose between two on top ten of the options and choose a false confession that leads to an involuntary confession right and the tactics may result in different legal conclusions depending upon the degree of impairment of the subject absolutely because it's a talent in circumstances tests which is inherently flexible indeed isn't inherently flexible but i want to stress that in this case there are two tactics that are used that each by themselves this court has said are prohibited tactics and i think that that what the supreme court says that's important well i think th is absolutely important and i think that defined at the appropriate level of generality you know it probably is was a reasonable officer on notice given the totality of circumstances whether the tactics in susceptibilities led to an involuntary confession but but this court's cases are also important for putting officers on notice of what sorts of conduct during an interrogation are legal and false promises of leniency this court has said it in the sworn berger case and in others are off limits and so presenting a choice that would make an innocent person shoes the confession and and i would submit that that absolutely happened in this case when the defendants said to daniel jackson we've got you now you're a black man no matter what happens in this in this interrogation or your criminal trial you're going to be convicted based on the color of your skin and therefore you might as well confess throw yourselves at our mercy and we will try to help you so it sort of combines with the false promise of leniency to put a a young man who is severely intoxicated in an untenable position where he says god i better submit to these interrogators african american officer making that speech yeah and i don't think that it makes a difference except to the extent that it inappropriate at the summary judgment stage and certainly inappropriate on the pleadings book but what this officer said was and i'm reading from the appellate court opinion he said and what are the stereotypes nowadays of young black men between the ages of thirteen and twenty four what they think we're doing robbing stealing shooting killing making babies and taking care of babies they ain't workin they ain't going to school they got idle time on their hands and they meaning the perspective jurors they're getting tired of that s so now you think ok you're going to get a jury of your peers and i love that word a jury of your peers because when you look over you ain't going to see not one person that looks like you acts like you so now we've got stereotyped types we've got a jury of not your peers that's going to judge you and we got you not telling explain your actions and how you felt at the time the threat was present you notice how i said that how the threat was presented to you and how you handled it they're telling him confess to self defense because you're getting convicted no matter what because you're a black kid and that's antithetical to our criminal justice system these people represent the criminal justice system in the interrogation and that tactic there has been ruled by this court to be exactly the kind of false choice that you can't present to an innocent person they say that's not considered at a very high level of generality i haven't seen anything like this before well so so i think that there is a point to be made that there's a difference between the tactics used and the subject matter employed when that tactic is deployed and i think that that for purposes of false confession claims and defining things at the right level of generality is key because we can show cases that say this sort of tactic putting pressure on an individual so that they would choose false confession over the untenable choice on the other side that's her hit but you don't need to show that the subject matter whether that storms are going to take your kids away this case you're a black man so you're definitely convicted that level of specificity isn't needed and i think that it it allows a situation where the cases can put officers on notice of the types of tactics without requiring an exactly analogous case thank you ron thank  your honor i just want to quickly direct you to your u s versus turturro which holds that intoxication alone does not show in voluntariness and people versus moon which illustrated with cited in our brief that you have to be so grossly intoxicated that you cannot even give a waiver of your rights and that is not what's depicted in the video with regard to mr art's comments about the illinois appellate court we recognize that the illinois two members of that panel found detective mcdaniels comments to be blatantly coercive but the other member of that panel didn't have any issue with the interrogation tactics used whatsoever and neither did the trial court who permitted  the video interrogation to go before the jury and i present to you that that clearly shows a that any tactics used by the police officers were not clearly established that they did not violate any of plain facts right