Asociación De Periodistas De Puerto Rico v. Mueller , 680 F.3d 70 ( 2012 )


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  •           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-