well here the final case on the calendar douglas versus city of new york  defendant's local rule fifty six point one statement as undisputed in a footnote on the first page of the decision when many of those facts were specifically disputed claims of state tailed fifty six point one counter statement the district court also simply ignored a number of facts that were favorable to the plaintiff if the facts and the inferences are viewed in the light most favorable to the plaintiff they set forth the following scenario that on the morning of october fourteenth two thousand d could you tell us from your point of view what those videos undisputedly show as the court is aware plaintiffs move for partial summary judgment with regard to what is shown on the video on equivocal which is that after mr douglas kicks the scooter which was according to his version of events parked on top of him at the time he was dragged by officer different cheska who had gotten off the scooter and who had not asked him in any way shape or form if he was alright made any inquiry of why he was screaming under the scooter he was dragged some feet flipped over on to his stomach and then officer di francesco this is clearly seen in the video footage takes his nightstick and uses it to mash mr douglas's face into the pavement officer different cheska has admitted that he did this for about twenty to thirty seconds which is a long period of time and you also see on the video footage some officer punched you know this is one aspect of the force that was not only disputed but it was not mentioned that all by judge carter there's an allegation by mr douglas that while he was on the ground gloved hands gripped his head there was no allegation of a punch it was that gloved hands gripped the video that i see a punch in the video i did not watch the video numerous times but i watched it this morning again and i thought i saw  but the allegation that is not captured on the video footage because there is movement and it becomes blocked at various points the different angles as multiple video videos showing what occurred but mr cheska and that there was a failure to intervene by officer allen who stood by and watched and by sergeant burns who was bending his arm there that was the only aspect of where plaintiffs moved for summary judgment because this fact disputes about everything else on the on the question of whether your client was trapped by the scooter you introduced to it witnesses correct correct me if i'm i got it wrong  you have two witnesses saying your client was trapped yes you're on your adversary's witness testimony to the contrary not not exactly the witness marino who there is a conflict desk that's been filed confidentially i put a note that i think it should be not filed under seal but that's not for my remaining two minutes  on that recording and then in that position testimony under my questioning mr marino states that he really doesn't know why mr douglas was putting his legs under the scooter and that he couldn't tell whether or not he was or was video and said well the video shows that he wasn't trapped on the scooter but the video doesn't show that video you can't tell from the video one way or the other whether he has wrist not trapped under the scooter and if there's if there is at least some difference of view why isn't there arguable probable cause well because officer different cheska created this situation under the plaintiff's version of the facts officer  crowd of people aggressively then purposely accelerated his scooter into mr douglas which is itself an act of excessive force then purposely ran over his left ankle or foot area which is another act of excessive force which the district court did not address and then knowing that he had just struck mr douglas with his own motor scooter and saw him screaming on the ground and pulled and parked the scooter at an angle where it tilted on to his right leg got off the scooter made no inquiry of him whatsoever didn't say sir you all right can i be of some assistance come down everything's going to be ok immediately walked off to attend to a crowd and the district court also interpreted the condition of the crowd in the light most favorable to enter and i'm sure your response to or at least a part of your response to judge katzman is question would be that that even if even if it did establish probable cause because of ambiguity that would not that that would not rebut the extent the part of your case that depends on inflicting pain on him and by running over him with the scooter well that is partially my response i mean that in terms of the arguable probable cause there are laws against probable cause as well but even if there is cause that has nothing to do is correct the injury inflicted by his that is correct even assuming argue when though there is probable cause or arguable probable cause the force here that was used by officer di francesco was on reasonable under any circumstances based on the undisputed facts and something there are two entirely separate correct issues of moments of application of force that is with the with the scooter and then as a result of what was done with the scooter on both sides the later arrest and forcing him to the pavement with the nightstick that is correct they are separable but just to get back to the argue berber probable cause issue there's no arguable probable cause if an officer knows that he has violated the constitution and under the circumstances that was an intentional assault on mr douglas with the scooter it was intentionally left on him and what it what's the evidence that he intentionally i did it rather than accidentally well he is good or you see from the video that the scooter lurches forward into mr douglas and you can see his body fall then see him screaming on the ground and then you see the scooter lurch forward again and it goes had that point over his ankle which is blocked by the video if the facts and the inferences were taken in the light most favorable r get off the scooter and say are you all right how what's going on calm down can i help you can i help are you trapped or you're stuck and there was none of that it was if even if the officer was aware that his scooter had harmed the plaintive that wouldn't detract from the probable cause if the if the plane if then kicked over the scooter you could still arrest  him even if the police officer has caused harm to the plaintiff if the plaintiff then kicks over the scooter in a manner that that that that can appear to be to be gratuitous or or  vengeance against having been harmed previously is still something you can be arrested for under probable cause well the criminal mischief statute states that if one has a reasonable ground to believe that here on a reasonable grounds the fact that you have been harmed previously is not a reasonable ground to cause damage to the police scooter not to cause damage for the purpose of causing damage but to cause damage in order to free oneself  the officer knew that he was that he was trapped at that that the kick of the leg was trying to get himself out from being trapped as opposed to as opposed to an act of revenge for having anger and revenge for having been and under the plaintiff's facts a reasonable officer would be for he just left him screaming on the scooter make some inquiries as to is he ok there was no rush when he went off to attend to the crowd only the francesca at that point went off to attend to the crowd none of the other officers there were concerned with any crowd surging forward was only after different chester grabbed mr douglass and dragged him to the place where he was brutalized that the other officers then stepped in and started to push the crowd back so it's really a fact issue at the trial the jury can consider whether or not the francesca had a reasonable basis to think he wasn't tracked but we have evidence we have witnesses as well as the plaintiff's testimony as well as the video footage which i think helps us to show that mr douglas is going was trapped under the scooter and that different chest was certainly in a position to know that since he's the one who put him in that position and was right on top of him and abandoned him in that position i see him considerably over my thank may please the court jason anton behalf of the city of new york and the city defendants in the midst of a tense and chaotic protest plaintiff ariel douglas kicked over and visibly damaged a police scooter moving quickly to prevent further escalation officers acting on their own reasonable beliefs promptly pulled the plaintiffs from the crowd and arrested him their actions are firmly protected by qualified immunity and the district court thus properly granted summary judgment and i ask you about the the crowd yes and the video think it is first of all it's a mix of people there are several photographers there and that's clear from the video your honor i think the youtube video in particular that we cite in our brief indicates the increasing aggression of the crowd and usually you have many people in the crowd so the plaintiff estimates i believe it was thirty to fifty  i could go back and find the exact citation that he estimated that's initially when there is the sort of horse shoe of people forming around the back of the police fan there's the protest you see initially which is the chant of let them go as police march two or three arrestees towards this police van to load them in once the arrest starts to take place you hear several curse words what the f is your problem you see a bottle thrown a garbage bag thrown at police officer so it is steadily escalating and certainly once office here in that first of all i don't think that there is no obligation he is not the defense lawyer that's certainly correct and as we are going our brief there's no obligation first of all on behalf of officers to investigate the circumstances to try to speculate as a point of sta saying you're making a presentation yes you're on a right and you're completely not mentioning this fact that when he kicks or the video he's lying whatever he's trapped or whatever but he's lying on the ground seemingly clearly apparent to the officers on the scene that there was a justification a right for kicking over the scooter in order for them to not believe that there was a fair probability and if your officer french esca and you know that you have rolled the scooter over on to his leg and the scooter right now is holding his leg down so that he can't move it and use and use and you see there what he does is he kicks to try and free his leg and that knocks over the scooter you have probable cause to arrest him in that circumstance it was clear that he was trapped i'm not sure that the case here and you have to francesca's clear to the get to the person who with had rolled the scooter assuming that it was on and on his leg which is certainly the relevant down and this was apparent to francesca does francesca have probable cause to arrest him for the new york case law that i've seen you know just answer the question as to that as to whether he is probable cause to arrest a would have to be clear even in that circumstance when he knows that he's trapped and then have to have a reasonable ground to believe that you have a right to kick it well on his arm and george was facts his foot is stuck under the under the scooters so he yeah i think even in that scenario there may be you just say you know help i'm trapped or i'm stuck i'm not sure it's they're not sure what as to whether there would be probable cause and that center there might be arguable probable cause which still would be protected by qualified immunity here but i want to how would you get to either probable cause or probable certainly it still kicked recklessly which required state of mind over the criminal mischief in the fourth degree it's reckless to free yourself from under the scrutiny i think instead of perhaps saying i'm stuck under the scooter and asking for oh you have to say oh excuse me officer could you come over here because i'm stuck under this at the very very officer who struck i'm so to speak and who walked away from the scooter you're not you think does does it make any sense to you perhaps not perhaps in that circumstance perhaps there would be there would not be probable cause but in the circumstances here it was certainly not clearly apparent to the officers that ariel douglas was trapped underneath the scooter and there are a few who say the officers the questions that we've been asking you was not about the officers plural it was about one officer the one who hypothetically may have rolled the scooter over onto his leg so that it was pinning his leg down and he was screaming in pain that's the officer we're asking you about not the other ones right and i think the circumstances did not make it clearly apparent to him that there was a right to kick over the scooter at that point and the reason being first of all that we see the video evidence of a point of pulling his leg back from the front of the scooter and inserting a leg back behind it we see the right foot a budding the back tire in the video you saw it but the officer couldn't take doing crowd control he testifies as to when you can see what he did with his scooter is he moves forward and then hit something and then moves his scooter back a bit before departing that scooter and getting up to do crowd control even and even if even if we were to accept your argument about probable cause or are you will probably cause are there still nevertheless questions about  whether there was an excessive use of force i think excessive force is yes there is there i don't think there are questions that i think the district properly granted summary judgment but i'm happy to address excessive force and i think there are two separate instances as judge of all noted there is the impact initially with the scooter and then there is the arrest in the force that was used in the context of this of that arrest and certainly more bad concepts was it only me did you see any officer while he was lying on the ground or get more specific come over to lean over to the ground i mean that's a question of fact i would say you made it doesn't argue otherwise that he was out he didn't see it but you did and i did there's no allegation before this record either that there was a punch that occurred at any time so i don't see that from the video nor do i think it's it's been argued that it occurred during the video but you know exactly what i'm talking about i think there's an instance in the video your honor where the officer grabs the arm and pushes it down to the ground when they're attempting to immobilize plaintiffs when they're performing the arrest and certainly broadly in the context of excessive force in our brief the court is well familiar with the objective reasonable test test and how qualified immunity is particularly broad in excess of four scenarios because of the difficulty of drawing a line between when force is reasonable and when is is is excessive in a particular circu that this is that one case that is a really long i don't think so your honor and i think it's first of all because of the split second judgments that officers had to make in this case they had a tense and uncertain scenario as i was discussing previously with regard to a crowd that was getting increasingly angry the officers had to effectuate arrest quickly in order against what they perceived reasonably as a violent suspect because a suspect had kicked over police property and damaged it but they also wanted to make sure that others in the crowd were not emulate the plaintiff's behavior are from the video your honour's that the situation was escalating when you start to have objects being thrown at police officers you have ten officers also on site right who who seem to be very calm and collected certainly there were there were other officers i'm not sure c how i would characterize their behavior in that they were screaming get back in trying to move the crowd backward but certainly i think they were reasonable and perceiving a threat in pursuing a threat from the plaintiff and were making a very quick decision in ten circumstances i think also you have the lack of evidence of maliciousness us to the officers in this context and that as they testified to you know they pulled a point of away from the crowd initially in order to ensure that his safety was protected that the officers  and for his sake yes that because trying to arrest someone certainly when surrounded by a crowd when the crowd is right on top you can be dangerously moved into the police perimeter that had been established that officer different just was initially trying to establish in order to  he didn't douglas didn't resist arrest any the district court found indicated that the video didn't indicate any resistance certainly the officers testified as to resistance and there is an instance scooter itself there are two issues first of all it is intentionality the video makes very clear that officer di francesco on his scooter as he moves towards the corner of the police van is hitting his horn it's blaring and it happens when he stops the scooter very close to the corner of the police van he's still hitting the scooters horn to try to make people clear a path even testifies to saying you know get out of the way now plaintive doesn't hear any of this as he testifies devastation but the fact that those statements were made and then officer do franchesca move slowly forward as you can see from the video and then makes impact suggest that he did not intentionally or want to make impact with plaintiff and even plaintive in his deposition indicates that he wasn't sure whether was attentional or not it was just a conclusion that he was drawing because of the fact that he was hit fact plaintive just describes it as a glancing blow not a direct hard impact with a scooter second of all even if he was impacted intentionally i don't think the force was clearly excessive in these circumstances and i've laid out the some object that obstructed him from having forward as evidence that he had had to to trap anyone underneath but also crowd control more generally is certainly a reasonable police tactic when they're trying to load arrestees into the back of a police van as nobody move when they plan to get back to him i'd be speculating your honor but certainly i think it was reasonable for officers to attempt to control the crowd first because of the safety risk and then as opposed to the guy who's lying on the ground screaming and then they could attend to him and perhaps  he once they've secured the perimeter which was breaking down at that point that's why officer de francesco got off his scooter as to the arrest of the second component of the excessive force claim again as i mentioned police needed to conduct a quick and decisive response to police to grech did aggression to deescalate a chaotic situation and control the violence suspect that is quintessentially well qualified immunity is designed to protect so certainly first of all force was permitted in this circumstance to some degree of force and point of doesn't contest this point it took aggressive plate to from the crowd for his safety and for the safety of the officers and then went to immobilize him but they had no time to calibrate the precise amount of force that they should use in that circumstance they knew they had to get him arrested quickly didn't know how strong  need to have no time to calibrate what is in a reasonable amount of force to you you know that means the way i interpreted means you can use any amount of force because i don't have enough time to think it through so i will smack the guy over the head with  nightstick i don't think that's true your honor that they're what does it mean you know what i'm asking you don't need to determine what is the least amount of force possible to accomplish the goal you're trying to accomplish in a particular circumstance what they did is they tried to hold him down when he craned his neck up which can make it easier to move around they moved him back down into the ground and arrested him quickly they didn't have to determine what the least possible force but rather just a reasonable or at least what was not beyond debate on reasonable to affect that arrest in that circumstance and also i think what's relevant to the excessive forc inquiry is the relatively little injury that occurred it is certainly unfortunate that plaintiff received a laceration on his head and that it was bleeding it require a couple of stitches there were no other there other medical treatment other than a technician shot that he received no future medical treatment that he required that the his medical records themselves indicated no brut no bruising or swelling it was just soft or snow swelling it was just soft tissue issue injuries no deformity i should say and in those circumstances we think that there's no excessive force  to address a few of the points raised by opposing counsel the only time that the crowd began to get on rule in any way that involved anything that potentially smacked of violence was after mr douglas began to be brutalized and people in the crowd you can hear them on the video are gassed at what they're seeing there is an excited utterance on the exhibit each tape saying screaming he's running over his foot you can hear it clear is that you can hear it said multiple times you ran over his foot you ran over his foot that said with a bit calmer i think it was somebody else but one is clearly an excited on utterance just based on the tone you also at the end of the other video that plaintive put into the summary judgment record at the end of the video after mr douglas is  put into the prisoner van you see the camera person using a man on the francesca on his scooter and say that guy should not be working that guy should not be on the force he just ran over he called them a photographer took mr douglas for a photographer but multiple people on the scene cannot believe what they're seeing and cannot believe what was done with the scooter to mr douglas and afterwards what was done another individual says look at his blood on the street look at his is f f ing blood on the street and he's he cannot believe what he just witnessed so he to be more precise about the timing of the voice that's heard saying saying he ran over his foot when does that occur in revenge that occurs while he's on the ground that's before he kicks over the scooter don't remember a family event at substantially before he's arrested don't remember if it's while he's being arrested or if it's but it's while he's on the ground it's while he's on the ground then after the scooter moved forward and ran over his ankle whether he said he you know he ran over his foot prior to when he kicked it i'm sorry judge i  i don't remember the precise a second that it occurred the whole incident occurred within a relatively short duration he got hit by the scooter he was on the ground a few seconds went by the scooter went forward from the time he got off the scooter the francesco was moving the crowd back on his own and he was the only one who thought it was necessary to do it at that point there was no crowd surging forward then i think five or six seconds went by and i think it was during that period where that the individual says he's running over his foot but if you'd like i'll be happy to isolate that is and i'm concerned about the the timing is that  that that if this holler from the crowd that's or the ball on the tape occurred before he was arrested it has a bearing on admissibility in that the fact that it was said  the crowd is relevant to to giving knowledge giving awareness to differentiate even if di francesco was not aware of it from his own pushing the scooter he would be aware of it or argue argue it's not my claim at all that it bears upon whether different cheska heard him say that you offered a reason for its admissibility you said an excited utterance an excited utterance that this act was in fact done that he ran over his ankle  talking about the admissibility of it as another another possible basis for its admissibility in that it went goes to the state of mind of the francesca's possible it's possible that was not the reason that i had put it into the summary judgment record but that's yet another potential use for it and they'd so anyway so the only thing that once the crowd became aghast at what they were seeing only then do you see something being thrown from the crowd some white garbage bag comes from behind the camera and lands at the feet of a plainclothes police detective or or chief of some sort it plops down that it's feet you don't see who threw it you don't see if it was a demonstrator who threw it or if a cop something and tossed it himself in there but then police go on to the sidewalk and drag out some civilians and place them under arrest but at no point anywhere on the footage do you see any civilians doing anything violent to the police now getting just to the point of small now claim for a second you do see on this date in question numerous acts of significant violence by the police who are on the scene in significant force and particularly by the scooter officers and you have testimony by all three of the nonparty witnesses by the last one marino on his audiotape which has some static but it's clear he says that police are using the scooters to move people everybody got hit by the department since you had the very highest level chiefs on scene commanding themselves plaintiff fell into the chief of patrol and got his blood you can see it on one of the videos smeared all down his his crisp white shirt before he was day and in can join that's enough by itself but in conjunction with that you have very high level chiefs who are on the scene and they're doing that anyway it's not as though they were in some dark and corner of of the bronx and there's no high level officers around this was a significant d mobilization they didn't they came out there expecting a crowd we have your argument if you want to finish your sentence go ahead they came out expecting a crowd for occupy wall street they were prepared for it they had