Asociación De Periodistas De Puerto Rico v. Mueller

United States Court of Appeals
For the First Circuit

No. 09-2385

ASOCIACIÓN DE PERIODISTAS DE PUERTO RICO, Puerto Rico
Journalists Association; OVERSEAS PRESS CLUB OF PUERTO RICO;
NORMANDO VALENTÍN, individual capacity and on behalf of his
respective Conjugal Partnership; VICTOR SÁNCHEZ, individual
capacity and on behalf of his respective Conjugal Partnership;
JOEL LAGO-ROMÁN, individual capacity and on behalf of her
respective Conjugal Partnership; COSETTE DONALDS-BROWN,
individual capacity and on behalf of her respective Conjugal
Partnership; VÍCTOR FERNÁNDEZ, individual capacity and on behalf
of his Conjugal Partnership; ANNETTE ALVAREZ, individual capacity
and on behalf of her respective Conjugal Partnership,

Plaintiffs-Appellants,

v.

ROBERT MUELLER, in his official capacity as Director of the
Federal Bureau of Investigation; TEN UNKNOWN AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION, individually and in their
official capacity and on behalf of their Conjugal Partnership;
KEITH BYERS, individually and in his official capacity and on
behalf of his Conjugal Partnership; LUIS S. FRATICELLI,
individually and in his official capacity and on behalf of his
Conjugal Partnership; JOSE FIGUEROA-SANCHA, individually and in
his official capacity and on behalf of his Conjugal Partnership.

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Boudin and Howard, Circuit Judges,
and Barbadoro,* District Judge.

*
Of the District of New Hampshire, sitting by designation.
 Catherine Crump, with whom Aden J. Fine, ACLU Foundation,
Josué Gonzalez Ortiz, William Ramirez, ACLU of Puerto Rico
Foundation, and Nora Varga Acosta were on brief, for appellants.
H. Thomas Byron, III, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, with whom Tony West,
Assistant Attorney General, Rosa E. Rodriguez-Velez, United States
Attorney and Barbara L. Herwig, Attorney, Appellate Staff, Civil
Division, United States Department of Justice were on brief, for
appellees.

May 16, 2012
 HOWARD, Circuit Judge. This appeal involves claims for

damages and injunctive relief by several journalists against FBI

agents, who the journalists allege used excessive force against

them during the execution of a search warrant at an apartment

complex in San Juan, Puerto Rico.1 In a prior appeal in this case

we vacated a grant of summary judgment based on qualified immunity.

See Asociación De Periodistas De P.R. v. Mueller, 529 F.3d 52

(2008) ("Periodistas II"). After further development of the record

on remand, the district court again granted summary judgment to the

defendants on the Fourth Amendment excessive force claims. We

affirm.

I. Background

We recite the facts in the light most favorable to the

plaintiffs, "drawing all reasonably supported inferences in [their]

favor." Estate of Bennett v. Wainwright, 548 F.3d 155, 159 (1st

Cir. 2008). There is one qualification: "evidence from the moving

party as to specific facts can be accepted by the court where no

contrary evidence is tendered by the party opposing summary

judgment." Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010).

The recitation is lengthy but necessarily so given the nature of

the events.

1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).

-3-
 At approximately 10:00 AM on February 10, 2006, FBI

agents executed a search warrant at the apartment home of Lillian

Laboy-Rodriguez ("Laboy"). The search was one of six conducted by

the FBI that day involving an alleged domestic terrorism plot by a

Puerto Rican organization known as "Los Macheteros" (the Machete-

Wielders). This organization, dedicated to the independence of

Puerto Rico, has been involved in numerous prior violent acts and

its former leader was killed in a shoot-out with the FBI less than

a year earlier. For some reasons not explained, the FBI did not

have assistance from local law enforcement for the operation.

The complex within which the apartment was located was

separated from the public street by a permanent, corral-style fence

made of metal bars. This fence offered two points of entry into

the complex: a narrow pedestrian gate adjacent to a guard booth

manned by an employee of the complex and a wider gate for

automobiles. The apartment was located on the sixth floor of the

building.

Before the search began, Special Agent Keith Byers, who

served as the FBI's media representative for the operation, briefed

the participating agents about the day's plan. According to Byers,

the agents were to establish a perimeter around the operation; he

underscored that the media had "the right to do anything outside

the perimeter that does not interfere with the operation and/or the

safety of the agents and the public."

-4-
 The FBI agents assert that upon arrival they confirmed

with the complex's private security guard that access into the

complex was limited to residents or those with legitimate business

on the site. The agents did not, however, establish a formal

"perimeter" by posting guards, using tape or other means. It does

appear that an agent was generally positioned in the vicinity of

the pedestrian gate into the complex while the search was being

executed upstairs.

Both civilians and law enforcement personnel entered and

exited the complex during the search, using both gates; but there

is no indication that anyone other than residents, persons having

business within the complex, or law enforcement officers entered

the complex during most of the period of the lengthy search.2 The

agents also state that anyone attempting to visit the sixth floor

was escorted by an FBI agent.

While the FBI executed the warrant, more than a dozen

reporters and other members of televison and radio crews arrived to

report on the FBI's activities starting at about 11:00 AM. Among

the journalists were the individual plaintiffs: television

2
Around 1:00 PM, two women who claimed to be Ms. Laboy's
attorneys entered the complex via the vehicle gate. They were
quickly confronted by FBI agents nearby who demanded that they exit
the complex. After a brief confrontation in which the women
demanded to meet with their client, it was ultimately decided that
the women would confer with Ms. Laboy downstairs towards the rear
of the complex. This confrontation occurred in full view of the
assembled press. In fact, one of the attorneys came back to the
press and stated that the FBI had threatened her with arrest.

-5-
reporters Normando Valentín and Annette Alvarez, radio reporters

Cossette Donalds Brown and Joel Lago-Román, and television

cameramen Victor Sánchez and Víctor Fernández.

As the day progressed, the reporters were joined by an

increasing number of the general public. Some of these people

covered their faces with bandanas and some shouted negative

comments at FBI personnel. The plaintiffs say that the crowd were

never more than twenty or thirty peaceful, non-threatening people.

The defendants, in contrast, describe the crowd as being larger and

as including potentially violent individuals. The plaintiffs

concede that a couple of individuals in the crowd were yelling at

the agents.

The FBI agents at the site were concerned enough by the

growing crowd that they elected to call-in a quick reaction force

to arrive by helicopter and provide additional assistance to the

search team. Several reporters went to the helicopter landing area

to report on the action and to try to obtain comments. The

plaintiffs say the reporters were peaceful; the defendants, that

the plaintiffs' actions interfered with law enforcement operations.

At the complex, Agent Byers suspected that one of the

allegedly unruly people in the crowd was using his mobile phone to

take pictures of him and other agents, leading Byers to fear that

this person might be associated with Los Macheteros, as the group

was known to publish pictures of FBI agents and promote them as

-6-
targets. Byers also surmised that those individuals in the crowd

who had covered their faces were affiliated with Los Macheteros.

Additionally, while the group of on-lookers grew, Special

Agent José Figueroa heard from a photographer at the scene, Rafael

Rivera, that some people in the crowd were discussing plans to harm

FBI employees. The plaintiffs disclaim overhearing such plans in

the crowd and generally dispute that Rivera made this statement to

Agent Figueroa.

Later in the afternoon, as the search was concluding at

about 2:00 PM, Laboy's daughter Natalia Hernández-Laboy

("Hernández") and Francisco Rodriguez Burns, a reporter, arrived at

the scene. Hernández and Rodriguez entered the complex, but Agent

Byers then told Rodriguez that he was not permitted within the

complex. Before Rodriguez left, Hernández gestured to the

reporters outside the fence in a way that the reporters interpreted

as an invitation to enter the grounds.

Between ten and twenty reporters then quickly entered the

complex through the pedestrian gate. The plaintiffs acknowledge

that the gate was held open by Ricardo Santos, the head of a local

labor union. Nearby agents responded swiftly to block the

reporters from entering further into the complex grounds, first

ordering the reporters to return to the public street. At least a

couple of journalists moved beside or beyond the first group of

agents who had intercepted the journalists. The agents ordered the

-7-
journalists to retreat from the complex and began forcibly to

impede the path of the reporters and attempt to push them back

towards the gate.

The plaintiffs say that they indicated their willingness

to leave and that they intended to comply with the agents' demands,

but their ability to exit swiftly was blocked by the narrowness of

the pedestrian gate and possibly because more people were crowding

at the entrance. One journalist requested that the vehicle gate be

opened to facilitate the exodus. The plaintiffs admit that some of

their members continued to report on the unfolding events as they

exited, but they assert that they intended to leave. In what

appears to have been less than a minute, the situation inside and

around the complex escalated further because the physical

confrontation incited the crowd of citizens and remaining

journalists outside the complex, who were only a few feet from the

agents, separated only by an easily permeated fence.

All of the parties were shouting and yelling in the

course of a direct physical confrontation between the heavily armed

agents and journalists. One agent testified that someone in the

crowd outside the complex spat on his face as he attempted to

control the group inside the complex. Inside the complex, numerous

agents testified that they perceived the crowd to be either

maintaining its position inside the gates or possibly even surging

forward.

-8-
 Videotapings of the events in question--our consideration

of which is discussed below--bear out key portions of the agents'

version of events. While the plaintiffs insist on their

willingness and desire to comply with the agents' orders that they

leave the premises, the videos evince no such effort. Confronted

by armed agents and ordered to exit, few, if any, of the people

inside the complex made any effort to leave. To the contrary, many

of the journalists appear in the films to be confrontational in

their response to the agents. The rapid deterioration of the

situation is also obvious from the videos.

The agents concluded that those who had entered the

grounds were not attempting to leave, that the reporters were being

deliberately obstinate, and that the crowd inside the complex posed

a danger to the agents, evidence and bystanders. Two of the agents

allege that Plaintiff Lago sought to knee one of them in the groin,

though Lago specifically denies this version of events.

Eventually, one of the agents on the scene deployed his

pepper spray against the journalists inside the complex. He first

waved the canister above his head briefly, then fired several

bursts of spray into the crowd. At this point, most of the crowd

members inside the complex began to move back to the gate, but some

remained. Plaintiff Lago was sprayed a second time, directly in

the face, and forcibly removed from the complex, which is discussed

in more detail below. The pepper spray was also used against at

-9-
least one person, a plaintiff cameraman whose individual claims are

also discussed more below, who never entered the complex but rather

was filming against the fence where Lago was dragged out.

Some of the plaintiffs also allege that they were punched

and kicked by the FBI agents as they were forced out of the

complex, suffering bruises and other injuries. One FBI agent

agrees that he struck one of the plaintiffs. According to the

plaintiffs, the pepper spray disoriented the reporters, which made

the crowd's movements all the more unpredictable.3 They also

underscore that nothing violent had occurred before the FBI agents

used force against the journalists. Nevertheless, after the pepper

spray was used, agents were quickly able to force all who had

entered back out of the pedestrian gate and on to the street.

The six individual plaintiffs all allege that excessive

force was used against them during the melee. Valentín asserts

that he was pushed and punched by at least one FBI agent, that

Agent Byers elbowed and hit him, and that it took him several weeks

to recover. Sánchez says that he, too, was pushed and that it took

3
The defendants underscore that after the clash between the
FBI and the reporters, the crowd was unruly and abusive. Some
crowd members threw hard objects at agents and their vehicles,
breaking the windows in at least one vehicle. We do not consider
here the conduct subsequent to the use of force to justify what may
have instigated it: dramatic as these details may be, they do not
impact our analysis of the situation at the time of the alleged
Fourth Amendment violations and whether a reasonable officer in
that situation would have considered the force used to be
reasonable.

-10-
him weeks to recover from his pepper spray injuries. Donalds-Brown

and Alvarez do not claim that they were punched or hit, but they do

say that they were aggressively pushed out of the gate, and that

they suffered from the lingering effects of that force as well as

from those of the pepper spray.4

Lago first says that agents pointed weapons at him for no

apparent reason as he tried to interview them while they exited the

helicopter. He also says that during the fracas inside the complex

an agent grabbed him and pushed him while he expressed his

intention to leave, and that an agent hit him with a baton and used

it to push him towards the gate, but he could not retreat because

the crowd was pressed up behind him. Even after Lago announced

that he was leaving, Agent Byers allegedly shoved him several more

times.

Shortly thereafter, one of the agents resorted to pepper

spraying the crowd. Lago says that the initial burst of spray and

resulting chaos caused him to fall to the ground from

disorientation and pain. While on the ground, he was sprayed a

second time directly in the face behind the sunglasses that he was

wearing. Before he could regain his orientation an agent picked

4
However, plaintiff Alvarez--who was among a group inside the
fence who encountered pepper spray--alleges that she was
(unbeknownst to her) four weeks pregnant at the time of the
encounter; that "my pregnancy eventually resulted in a
miscarriage"; and that "I strongly believe that the stress and
anxiety that I suffered during this event played a great role in my
miscarriage."

-11-
him up and dragged, tossed, and kicked him forward until he was

outside the gate.

The defendants describe the agents' encounters with Lago

differently. First, an agent who was at the helicopter landing

says that Lago had stepped between him and the helicopter while he

was giving hand signals to the agents exiting the aircraft. He

also says that Lago and other reporters followed him and interfered

with the performance of his duties, including physically touching

him, but he just stepped around the reporters.

With respect to Lago's forced removal from inside the

fence, Byers recalls that Lago had intruded through the pedestrian

gate and was ordered to leave; when Lago did not do so, Byers

gripped him by the arm and attempted to walk him back to the

pedestrian gate. Byers later struck Lago when he observed him

struggling with a nearby agent and believed Lago to be physically

assaulting the agent. When Lago dropped to the ground near the

gate after the initial burst of pepper spray, the agent using the

spray perceived that he had gone to the ground in an act of

resistance and sprayed him again. A third agent then physically

removed Lago by dragging and pulling him out of the complex so the

agents could close the gate.

Fernández recounts that he was filming events from a

vantage point on the outside of the fence, but close to it, as

Lago was being forcibly removed from the complex. According to

-12-
Fernández, an agent noticed him and, approaching within a few feet

of him, sprayed him directly in the face with pepper spray even

though he and those around him were still outside the fence and had

not demonstrated any violent behavior or attitude toward the

agents.

The defendants say that Fernández was sprayed while an

agent attempted to force back members of the crowd who were

gathered around the gate just a couple of feet from the agents.

The defendants say that they took that action believing that their

own safety was in danger because the crowd around the gate where

Fernández was positioned was growing increasingly unruly and was

starting to throw objects at agents.

On this evidentiary array based on the summary judgment

record, the district court held that the defendants were entitled

to qualified immunity. Acknowledging that an issue of fact existed

about whether excessive force had been used, the court concluded

that the agents' conduct was not so unreasonable that they should

be held to know that it violated the Fourth Amendment. Asociación

de Periodístas de P.R. v. Mueller, No. 06-1931, slip. op. at 2-3

(D.P.R. Aug. 13, 2009) ("Periodistas III"). The district court

also denied future injunctive relief, holding that the plaintiffs

lacked standing to pursue this relief. Id. at 26.

The appeal is taken from both of these rulings. In

addition, the plaintiffs argue that the district court made

-13-
procedural errors, principally by denying them the opportunity to

pursue essential discovery while relying on depositions of some of

the defendants to which the plaintiffs were denied an opportunity

to respond, as well as by failing to rule on the admissibility of

the defendants' video evidence. We turn to these procedural

plaints first.

II. Discussion

A. Discovery and Reliance on Depositions

The plaintiffs argue that the district court wrongly

denied them the opportunity for adequate discovery; our review on

this issue is for abuse of discretion, Rivera-Torres v. Rey-

Hernández, 502 F.3d 7, 10 n.2 (1st Cir. 2007), and we will

intervene "only upon a clear showing [that] . . . the lower court's

discovery order was plainly wrong and resulted in substantial

prejudice to the aggrieved party." Ayala-Gerena v. Bristol Myers-

Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996) (citing Resolution Trust

Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.

1994)) (internal quotation marks omitted). Also reviewed for abuse

of discretion is the district court's reliance on evidence to which

plaintiffs say they did not have a chance to respond. Cia.

Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409-

410 (1st Cir. 1985).

After the defendants moved for summary judgment, the

plaintiffs requested discovery pursuant to Rule 56(f) (now

-14-
encompassed in Rule 56(d)) targeted at whether there was a

perimeter, whether the agents' fear of Los Macheteros or members of

Puerto Rico's independence movement was reasonable, and whether the

crowd was unruly.5 The district court granted the motion in part,

allowing the plaintiffs to depose only those individuals who had

supplied affidavits in support of the summary judgment motion. The

plaintiffs argue that the imposition of this limitation was an

abuse of discretion.

A basic tenet of Rule 56(f) practice is that the party

seeking discovery must explain how the facts, if collected, "will

suffice to defeat the pending summary judgment motion." Mir-Yepez

v. Banco Popular de P.R., 560 F.3d 14, 16 (1st Cir. 2009) (citing

Rivera-Torres, 502 F.3d at 10). The plaintiffs fall short of

meeting this requirement with respect to the depositions of

Hernández, Rodriguez, Rivera, and the FBI agents.

Whether Hernández invited the plaintiffs onto the

property is not relevant to the question of the reasonableness of

the defendants' actions in responding to what was, at a minimum, a

turbulent crowd. Nor does the qualified immunity question turn on

5
Specifically, they sought leave to depose all FBI agents at
the scene, Natalia Hernández-Laboy, private security guard Mary Ann
Rodriguez, and non-plaintiff photographer Rafael Rivera, who
allegedly warned the agents of potential harm to them. The
plaintiffs also requested various documents from the FBI, including
the agents' "after action" reports and their prior written
statements, records of the FBI's post-incident investigation, and
any operational plans related to the search.

-15-
whether the gate was opened for the plaintiffs by Rodriguez, the

security guard. The plaintiffs argued in the district court that

deposing Rivera was necessary to address whether the defendants

reasonably feared the crowd. Given the ample evidence in the

record describing the events in detail, there was no abuse of

discretion in denying this request. The precise words that Rivera

may have spoken to Agent Figueroa do not alter the calculus. There

was also no abuse of discretion in the decision to deny permission

to depose the estimated 25-45 non-defendant FBI agents who were at

the scene. The question before the court on summary judgment

centered on the perceptions of the defendant agents.

The denial of the plaintiffs' request for the report

prepared by the FBI Office of Professional Responsibility was also

within the district court's discretion. The plaintiffs argued

below that a report finding that the agents violated FBI policy

would be probative of the qualified immunity question. But the

plaintiffs do not dispute that both a sworn declaration from

Special Agent Figueroa and deposition testimony from one of the

defendant agents indicates that no such finding was made. Thus the

plaintiffs have failed to demonstrate how the report would help to

defeat summary judgment. See Rivera-Torres, 502 F.3d at 10.

With respect to the remaining documents, we note that the

district court ordered the defendants to produce written statements

prior to their depositions. After the depositions, the plaintiffs

-16-
sought additional statements that they claimed were revealed by the

deponents during their depositions. The district court denied any

further relief. As the plaintiffs, here again, have failed to

establish how these additional documents would have enabled them to

defeat summary judgment, we find no abuse of discretion.

In sum, the district court's carefully crafted discovery

limitations were consistent with the "importance of resolving

qualified immunity questions at the earliest possible stage in the

litigation," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), and

within its discretion.

We turn to the plaintiffs' complaint that the district

court should not have relied on the defendants' depositions. After

the defendants had moved for summary judgment and the plaintiffs

had deposed the defendants' affiants, the plaintiffs filed an

opposition arguing that the defendants should not be permitted to

submit new evidence or arguments in their reply. The defendants

nevertheless filed a reply referencing the depositions, and the

district court ordered that the deposition transcripts be scanned

into the record.

In citing to these depositions while addressing whether

any issues of material fact existed, the court noted that it was

permitted to "examine the entire record, including all discovery

and disclosure materials on file." Periodistas III, slip. op. at

9 (citing Fed. R. Civ. P. 56(c)). The district court's action was

-17-
proper. Courts and parties "have great flexibility with regard to

evidence that may be used on a Rule 56 proceeding," and as Rule

56(c) makes clear, in deciding summary judgment motions courts "may

consider any material that would be admissible or usable at trial,"

including depositions.6

The plaintiffs have not argued that the depositions would

be unusable at trial or that they were irrelevant "to determin[ing]

whether any of [the issues presented] [were] real and genuine and

whether any of post-pleading material suggests the existence of any

other triable issues of material fact." 10A Wright, Miller & Kane,

Federal Practice and Procedure § 2721. The district court was

within its discretion to consider them.

B. Video Clips

In the district court, the judge had before him video

footage of the events in question although they are not

specifically discussed; and the government's brief in this court

cites to these materials. The video clips were submitted by the

FBI in support of its motion and consist of clips from material

aired during local news broadcasts. Plaintiffs say that the film

6
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2721 (3d ed. 1998); see also Horta
v. Sullivan, 4 F.3d 2, 7-8 (1st Cir. 1993) ("Summary judgment is to
be decided on 'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any.'" (quoting Fed. R. Civ. P. 56(c))). In its
current form, Rule 56 states that a court considering summary
judgment "need consider only the cited materials, but it may
consider other materials in the record." Fed. R. Civ. 56(c)(3).

-18-
clips were not properly authenticated, violate the Best Evidence

Rule, Fed. R. Evid. 1001(2), and may not be relied upon in deciding

this case.

Authentication is a straightforward concept requiring a

"reasonable probability" that the item in dispute is what its

proponent claims. Fed. R. Evid. 901(a); United States v. Cruz, 352

F.3d 499, 506 (1st Cir. 2003). The proponent "need not rule out

all possibilities inconsistent with authenticity"; so long as the

"evidence is sufficient to allow a reasonable person to believe the

evidence is what it purports to be," it is left to the factfinder

to determine what weight it deserves. United States v. Alicea-

Cardoza, 132 F.3d 1, 4 (1st Cir. 1997).

An item's "appearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in

conjunction with the circumstances," are all relevant. United

States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994); United

States v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994). At issue here

are clips from multiple news programs with proprietary production

sets and locally-known television personalities from various

stations, each including clips that indisputably show the same

incident from different camera perspectives--all of which suggests

these are actual news clips with footage from the scene.

The video clips were accompanied by a declaration of

Jessica Tirado Gonzalez, the general manager of Publimedia, a

-19-
company that "specializes in monitoring Puerto Rico media outlets."

Tirado's declaration said the FBI hired Publimedia and it recorded

seven such programs about the incident--though "only those portions

of news broadcasts that pertained to the FBI's execution of the

search warrant" and not "portions of news programs concerning other

topics." Tirado stated that the four DVDs submitted by the

defendants contained true and correct copies of those recordings.

The plaintiffs do not suggest otherwise.

The plaintiffs describe the videos as "incomplete" and

"extensively edited" versions of the original TV broadcasts but

make no claim of (or offer any reason to suspect) fraud or

tampering, nor do they say that the videos do not show actual

footage of the incident in question (in fact their own expert

relied on the video footage in forming his own opinions). Cf.

United States v. Wheeler, 800 F.2d 100, 106 (7th Cir. 1986),

overruled on other grounds by United States v. Sblendorio, 830 F.2d

1382, 1393 (7th Cir. 1987); Louis Vuitton S.A. v. Spencer Handbags

Corp., 765 F.2d 966, 973-74 (2d Cir. 1985).

Further, the affidavits and depositions of several FBI

agents expressly confirmed the accuracy of the footage on the four

DVDs. For example, Agent Byers, designated as the FBI's on-scene

media representative at the search warrant execution, said that

numerous news outlets were present filming the incident, and also

stated several times in substance that the media footage accurately

-20-
reflected what occurred (e.g., "As shown in video footage and

according to my direct observation . . . .").

In sum, on the facts presented, there is no serious basis

for disputing the authenticity of the videos. While the plaintiffs

could have offered specific reasons why they are not fair

depictions or argued that specific portions (or omissions) are

misleading or prejudicial, they have not done so. See United

States v. Goldin, 311 F.3d 191, 197 (3d Cir. 2002); Louis Vuitton

S.A., 765 F.2d at 973-74; 2 Broun et al., McCormick on Evidence §

216, at 27 (6th ed. 2006). The authentication argument thus fails.

The plaintiffs also repackage their attack as a Best

Evidence Rule challenge, but the rule is a mechanical one and was

satisfied here. The Best Evidence Rule, with some exceptions,

requires the use of an original writing, recording, or photograph7

in proving its material contents, but a copy of a video recording

is a "duplicate" admissible "to the same extent as the original,"

Fed. R. Evid. 1001 & Fed. R. Evid. 1003 advisory committee's note,

which largely ends the Best Evidence Rule inquiry in a case like

this one.

The plaintiffs say that language in an advisory committee

note creates an exception for copies that leave out important

material. See Fed. R. Evid. 1003 advisory committee's note (citing

7
Video tapes are considered "photographs" for purposes of the
rule. Fed. R. Evid. 1001 advisory committee's note.

-21-
United States v. Alexander, 326 F.2d 736 (4th Cir. 1963)); Toho

Bussan Kaisha, Ltd. v. Am. President Lines, Ltd., 265 F.2d 418 (2d

Cir. 1958)). Here they say that the videos are incomplete because

of the absence of footage in one video clip showing the entrance of

journalists into the complex, and the absence in another clip of

certain use of pepper spray.

But this does not show that the videos are inaccurate or

incomplete in the incidents that they depict or that taken together

the tapes fail to include such footage of the entrance of reporters

or the use of pepper spray. The exception alluded to by the

plaintiffs is for extreme situations where there is reason to

suspect extensive prejudicial manipulation, Alexander, 326 F.2d at

738 & n.4, or fraud, Toho Bussan, 265 F.2d at 424, and the

plaintiffs' objections about the videos do not rise to such a

level.

C. Qualified Immunity

We review a grant of summary judgment on qualified

immunity grounds de novo. Estate of Bennett, 548 F.3d at 165. If

"the evidence on the record is sufficiently open-ended to permit a

rational factfinder to resolve the issue in favor of either side,"

then we cannot affirm the grant. Id. at 165 (internal quotation

marks omitted).

The qualified immunity analysis asks whether the facts

alleged or shown by the plaintiff make out a violation of a

-22-
constitutional right and whether the right was clearly established

at the time of the violation. Soto-Torres v. Fraticelli, 654 F.3d

153, 158 (1st Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223,

232 (2009)). A right is clearly established if it would be plain

to a reasonable officer that his conduct was unlawful in the

particular factual context that he faced. Id. (quoting Brosseau v.

Haugen, 543 U.S. 194, 199 (2004)); Decotiis v. Whittemore, 635 F.3d

22, 36 (1st Cir. 2011).

The district court concluded that a reasonable jury could

have found that the plaintiffs' allegations established violations

of their Fourth Amendment right not to be subject to unreasonable

seizures. But, noting the lack of controlling precedent as to

whether a non-arrest such as the one at issue here could be

considered a "seizure" within the meaning of the Fourth Amendment,

the court concluded that those rights were not clearly established

at the time of the events and that the defendants were therefore

entitled to qualified immunity. Even if viewed as a seizure, the

court found the force employed by the defendants was reasonable in

light of the circumstances as they reasonably could have perceived

them.

We need not follow the steps of the qualified immunity

analysis sequentially. See Maldonado, 568 F.3d at 269-70; see also

Pearson, 555 U.S. at 235-36. "Indeed, . . . where the answer to

the first prong of the immunity question may depend on the further

-23-
development of the facts, it may be wise to avoid the first step."

Maldonado, 568 F.3d at 270. We also needn't follow the same

analytical path as the district court. See Rosenberg v. City of

Everett, 328 F.3d 12, 17 (1st Cir. 2003) ("We may affirm the

[summary judgment] decision on any grounds revealed by the

record."). We therefore turn directly to whether reasonable

officers would have known that their conduct was unlawful.

Saucier holds that "[e]xcessive force claims, like most

other Fourth Amendment issues, are evaluated for objective

reasonableness based upon the information the officers had when the

conduct occurred." 533 U.S. at 207. We judge "[t]he

'reasonableness' of a particular use of force . . . from the

perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight."8 The combination of the two

reasonableness standards--that of qualified immunity and that of

the Fourth Amendment--serves to protect officers from their

reasonable mistakes. Solis-Alarcón v. United States, 662 F.3d 577,

581 (1st Cir. 2011).

Thus, qualified immunity can protect officers from

litigation based on misjudgments about where lies the "sometimes

hazy border between excessive and acceptable force." Saucier, 533

8
Graham, 490 U.S. at 396 (emphasis added); see also Saucier,
533 U.S. at 201 (the reasonableness inquiry "must be undertaken in
light of the specific context of the case, not as a broad general
proposition. . . .").

-24-
U.S. at 206. "Qualified immunity shields an officer from suit when

she makes a decision that, even if constitutionally deficient,

reasonably misapprehends the law governing the circumstances she

confronted." Brosseau, 543 U.S. at 198 (citing Saucier, 533 U.S.

at 206). For example, "[i]f an officer reasonably, but mistakenly,

believed that a suspect was likely to fight back, . . . the officer

would be justified in using more force than in fact was needed."

Saucier, 533 U.S. at 205; accord Estate of Bennett, 548 F.3d at 175

(quoting Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007)) (not

"unreasonable" simply because officer "failed to 'perfectly

calibrate the amount of force required to protect [him]self.'").9

Taking the facts in the light most favorable to the

plaintiff reporters, the agents' actions were still reasonable in

light of the combustible situation that they faced. The agents

were executing a warrant related to what they viewed as an anti-

terrorism investigation, involving an organization known for its

reputation for violence and one that had been involved in a recent

shoot-out with FBI agents. The agents had been told not to expect

9
See also Statchen, 623 F.3d at 18 ("While qualified immunity
is often invoked in cases where legal principles were unclear at
the time of the disputed conduct, it also protects reasonable
assessments of fact, even if matters might have been handled
differently in the calm of retrospective appraisal. The aim of the
doctrine in both cases is to avoid the chilling effect of second-
guessing where the officers, acting in the heat of events, made a
defensible (albeit imperfect) judgment." (internal citations
omitted)).

-25-
backup from local authorities--they were on their own for the

duration of the operation.

While the crowd members present during the day were, on

the plaintiffs' version of facts, primarily journalists, it is not

disputed that a small but vocal group of protesters were agitated

and yelling at the agents. As already recounted, one agent

testified that he had been told that crowd members had discussed

violence against the agents. The crowd members were just feet from

the agents, separated by a fence or gate depending on their

location.

Throughout most of the day, everyone agrees that the

protesters and journalists remained on the other side of the fence.

The plaintiffs vigorously dispute that there was a "perimeter"

enforced by the agents because no tape was used nor were any agents

stationed alongside the wall. A formal perimeter may or may not

have been officially established, but the fence indisputably

separated the agents from the public and journalists prior to the

events in question. The group entrance was unquestionably a

significant change in the circumstances.

When a large group of people suddenly intruded the

complex, a reasonable agent could have perceived that the security

situation was seriously threatened. The plaintiffs insist that

only journalists entered the complex, though they also acknowledge

that the pedestrian gate was held open by the leader of a local

-26-
labor union. A reasonable agent could reasonably have believed

that some number of non-journalists had entered, or would enter as

well, based in part on intimations and evidence that some members

of the crowd were angry or hostile.

The agents immediately intercepted the group that entered

the complex, ordered them to move back and return outside the

complex, and sought to block their path. At the point of this

physical confrontation, numerous agents testified to their concern

for themselves, their fellow agents, and the growing number of

bystanders immediately outside the complex. The scene was

escalating quickly as the crowd both inside and outside the complex

became more agitated in light of the physical confrontation between

the agents and reporters.

The reporters say that they were attempting to comply

with the agents' orders and retreat out of the complex but that

their exit was hampered by the narrow passageway back out. But

they admit that some of their number inside the complex were

continuing their efforts to report on the situation. The agents,

reasonably perceiving a volatile situation that was getting worse

by the minute as the crowd became more agitated, resorted to

increasing levels of force in an attempt to push the crowd back

outside the complex, culminating with the use of pepper spray and

the physical removal of at least one of the plaintiffs.

-27-
 Given the perceived noncompliance by the crowd inside the

complex, the previous verbal threats, the presence of FBI

personnel, civilians and evidence within the vicinity, and the

serious concerns about maintaining control of the area, the agents

reasonably could have concluded that the level of force that they

used was appropriate. In calm retrospection one may be tempted to

question the necessity or wisdom of specific agents' actions

against particular plaintiffs (and we will discuss those actions

next), but we cannot say with respect to any of the agents'

conduct, in gross, that "it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted."

Maldonado, 568 F.3d at 269 (internal quotation marks omitted).

Moreover, contrary to the plaintiffs' suggestion, the

FBI's policy at the time of the events in this case does not

undermine the conclusion that the agents' use of pepper spray

against the reporters as a crowd was reasonable. See Hope, 536

U.S. at 742 (holding that agency regulations can be relevant as to

whether officers have fair warning that conduct is a potential

constitutional violation). The policy permitted the use of pepper

spray in the event that "[t]he subject is likely to cause serious

bodily injury if not controlled, and force is necessary to safely

achieve control." In addition, as the district court noted,

"[w]here feasible, Special Agents were to give subjects an

opportunity to surrender before using pepper spray, and were to

-28-
consider whether subjects were noncompliant or had resisted law

enforcement orders, whether there had been verbal or nonverbal

threats, and the presence of persons in the vicinity of the risk."

Periodistas III, slip op. at 4-5.10

The individual claims of plaintiffs Fernández and Lago

require additional discussion. Agent Byers contends that he first

turned his attention to Lago because he perceived that Lago was

intentionally refusing to leave the complex and physically

resisting efforts to remove him. Byers grabbed him and sought to

push and pull him out of the gate. Byers was successful in getting

Lago back into the mass of reporters, but Lago remained inside the

complex.

Soon thereafter, Byers saw what he believed to be Lago

attempting to strike another agent struggling with the reporters

and heard the other agent threaten Lago with arrest. Byers agrees

that he then struck Lago in the chest with a jabbing motion of his

baton to force him back and away from the agent. Lago's version of

these events is that he was attempting to leave and that he never

attempted to strike any of the agents. But the key question is

10
Although they acknowledge that the agents asked them to leave
the premises, the plaintiffs say that they were not warned about
the imminent use of pepper spray, nor given "an opportunity to
surrender before using pepper spray." But the existence and
feasibility of such warnings are among a number of FBI pepper spray
policy factors, and our assessment of reasonableness does not rest
solely on the policy.

-29-
whether, in the melee, Byers could reasonably have believed otherwise.

Soon afterwards, Lago was hit by the first round of

pepper spray. He says that he fell to the ground because of the

pain and disorientation, while the agents perceived him to be

resisting the orders to leave. As the agent who used the pepper

spray stated in explaining his targeting of Lago:

After [Lago] sat down and . . . was passively
resisting, I noticed that he was wearing
sunglasses. So I went and I pepper sprayed
him to make sure that he actually got some
pepper spray on him so that he could quit
resisting.

Following this second burst, Lago was forcefully removed from the

complex by a third agent who said that Lago intentionally went limp

in an effort to obstruct the effort to remove him.

To be sure, a jury might find that the agents were

mistaken and that Lago had, in fact, not attempted to strike any of

the agents. The jury could also find that he fell to the ground in

confusion and pain. But it is also true that the defendants could

reasonably have perceived Lago as one who resisted leaving the

compound. Qualified immunity protects officers from their

"reasonable mistakes," Solis-Alarcón, 662 F.3d at 581, and given

the chaotic situation, we cannot conclude that the agents' actions

constituted unreasonable mistakes.

Fernández's situation is distinguishable from those of

the other plaintiffs because he never intruded inside the gate and

was on the street-side of the fence when he was pepper sprayed at

-30-
very close range. He also claims that the FBI agent who sprayed

him targeted him personally. The agents did not claim that he had

entered the gate; their concern, it appears, was that by the time

Fernández was sprayed, the crowd outside the pedestrian gate

immediately adjacent to Fernández had become unruly as a result of

the agents' use of force inside the compound.

The evidence, including both the agents' statements and

what can be discerned from the videos, bears out this assessment

and leaves unimpeached the agents' claim that people in the crowd

close to Fernández were antagonizing the agents by shouting

negative comments and slurs, even if Fernández is credited in

saying that he saw no one close to him throwing anything. The

agents could reasonably have sought to disperse those crowding in

at the perimeter.

Fernández claims to have been singled out, but the agent

says that he was attempting to spray agitated crowd members

threatening the officers by the gate. While we take disputed facts

in favor of the plaintiffs, Fernández's allegations regarding the

subjective beliefs of the agent are pure speculation.11 Given the

11
As one agent who employed pepper spray at the time Fernández
was hit explained in his deposition, "I had to deploy pepper spray
again as . . . the agent who escorted the reporter that . . . was
dragged out [i.e., Lago]. . . and at one point there was a
continuation of gravel flying at us, so I deployed pepper spray
towards the individuals that were continuing to throw stuff at us."
Fernández claims that although the crowd near him may have been
yelling, no one immediately around him had escalated his conduct to
violence by spitting or throwing.

-31-
circumstances, we conclude that a similarly situated reasonable

agent could have made the same decisions. See Estate of Bennett,

548 F.3d at 175-76. In sum, we affirm the grant of summary

judgment on the plaintiffs' Fourth Amendment claims on the grounds

of qualified immunity.

D. Injunctive Relief.

The plaintiffs sought an injunction prohibiting the

defendants from using like force during media coverage of future

FBI operations and requiring the FBI to develop policies and

procedures to ensure that the media may report on future FBI raids

"free from unwarranted attacks and other interferences from the

FBI." We conclude that the district court properly denied

injunctive relief, there being no indication that repetition was

likely. Weber v. Cranston Sch. Comm., 212 F.3d 41, 47 n.7 (1st

Cir. 2000).

To justify an injunction when the incident now lies in

the past, there must be a "real and immediate threat" of future

legal violations rather than an abstract or conjectural one, City

of Los Angeles v. Lyons, 461 U.S. 95, 101, 105 (1983). The

plaintiffs' assertions, like those in Lyons, fail on this account.

The plaintiffs are correct that Lyons requires them credibly to

allege a realistic threat of future injury, but they are incorrect

in concluding that their affidavits "are more than sufficient" to

meet that standard.

-32-
 The plaintiffs' subjective fears of conflicts with agents

during their possible future press coverage of FBI activities are

generic, speculative, and fail to demonstrate a "real and immediate

threat" of likely future violations. Any past harm that they

allegedly suffered does not by itself entitle them to obtain

equitable relief "'[a]bsent a sufficient likelihood that [they]

will again be wronged in a similar way,'" Amer. Postal Workers

Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992) (quoting

Lyons, 461 U.S. at 111 (1983)).

Nor is it enough that the reporters expect in the future

to cover FBI activities. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 564 (1992) (explaining that affiants' expressed

intentions of being in a future situation where they might be

deprived "is simply not enough. Such 'some day' intentions–-

without any description of concrete plans, or indeed even any

specification of when the some day will be-–do not support a

finding of the 'actual or imminent' injury that our cases

require.").

On the contrary, the circumstances of this case combine

peculiar features--including the special concerns when suspected

terrorism is involved, the lack of support from potentially large

numbers of local police, the unusual duration of the search, and

the lack of an entirely secure perimeter. Hopefully, as well, the

FBI agents will have learned some lessons in coping with a

-33-
disruptive gathering crowd since it is not in their own interest to

court repetition.

The judgment is affirmed. All parties will bear their

own costs on this appeal.

It is so ordered.

-34-