Two recent cases from two different federal circuits have affirmed the ability of a district court to review video evidence at the motion to dismiss stage, but also illustrate the different limitations on that ability in the Seventh Circuit compared to Eleventh Circuit. In Esco v. City of Chicago, No. 23-1304 (7th Cir., decided July 9, 2024), the Seventh Circuit affirmed the district court’s review of and reliance on body-worn camera video evidence (“BWC”), which was referenced in the complaint but not attached as an exhibit, at the motion to dismiss stage in concluding that probable cause existed to defeat the plaintiff’s claims of false arrest and malicious prosecution. In Johnson v. City of Atlanta, No. 22-11359 (11th Cir., decided July 12, 2024), the Eleventh Circuit adopted a more liberal adaptation of the incorporation-by-reference doctrine for consideration of video evidence at the motion to dismiss stage, and affirmed the district court’s consideration of video evidence despite it not being attached to, or even mentioned in, the plaintiff’s complaint because (1) the video evidence depicted events central to the plaintiff’s complaint and (2) the authenticity of the video evidence was not challenged. While the Seventh Circuit has not taken as expansive of an approach to when the consideration of video evidence is appropriate at the motion to dismiss stage as the Eleventh Circuit, Johnson provides persuasive authority for a more liberal approach that could be persuasive in pushing the Seventh Circuit to take a similar approach, and could help eliminate fictitious or duplicitous claims that are easily challenged by review of video evidence at the earliest possible stages of litigation.
The Seventh Circuit: Esco v. City of Chicago, No. 23-1304 (7th Cir., decided July 9, 2024)
While conducting remote video surveillance in Chicago, officers saw a man, who all parties agree was not Terrell Esco (“Esco”), walk down a street towards a group of individuals with a gun. Officers approached the group to investigate and saw someone throw a gun under a vehicle and run. Esco admits he ran from the officers but claimed that he did so because he “had a lot of weed” and not because he threw the gun. In his complaint, Esco asserted that despite knowing that someone else threw the gun and ran, the officers nevertheless arrested him and falsely stated in their police reports that he possessed the weapon. This, he claims, led to the eventual charges for being an armed habitual criminal, a felon in possession of a firearm, and for aggravated unlawful use of a weapon. Esco did not attach any video evidence to his complaint, but he did allege that that the BWC revealed that the officers knew Esco was not the one who had the gun.
The plaintiff asserted claims of false arrest and malicious prosecution, and in granting the defendants’ motion to dismiss the district court concluded based on the officers’ body-worn camera footage that the officers had probable cause. The plaintiff appealed and the Seventh Circuit considered the question of whether the district court’s consideration of and reliance on the BWC at the motion to dismiss stage was appropriate. In its analysis, the Seventh Circuit emphasizes that the consideration of video evidence at the motion to dismiss stage is proper when it is either (1) attached to the complaint as an exhibit or (2) referenced in the complaint and central to the claim. The Court also recognized that when a plaintiff’s allegations are contradicted by video evidence, the video will control but only when the allegations are “clearly, definitively, and uncontrovertibly contradicted by video footage”. Ultimately, the Court concluded that the consideration of and reliance on the BWC was appropriate because the plaintiff referred to the BWC in his complaint and because it depicted the moments leading up to the arrest, the arrest itself, and the investigation after the arrest which were central to the plaintiff’s claim of false arrest.
The Eleventh Circuit: Johnson v. City of Atlanta, No. 22-11359 (11th Cir., decided July 12, 2024)
The plaintiff, Charles Johnson, Jr., brought a complaint for excessive force against a police officer, Officer Rolfe, and the City of Atlanta arising out of his arrest for driving while intoxicated. Johnson alleged that Officer Rolfe pulled him over when he was driving while intoxicated and that in his interactions with Officer Rolfe, he acted respectfully, did not raise his voice, did not use any force and did not otherwise provide any justification for force to be used against him. Johnson alleges that during the arrest, Officer Rolfe grabbed Johnson and threw him to the ground, breaking his collar bone, because he did not comply with the officer’s command as quickly as he wanted. Johnson did not attach any video footage to his complaint, nor did he reference the officer’s BWC in his complaint.
The City filed a motion to dismiss and Officer Rolfe filed an answer and affirmative defenses, including a defense based on qualified immunity, in which he referenced his BWC and attached said footage. Officer Rolfe then filed a motion for judgment on the pleadings on the basis that the BWC established that he did not use excessive force and that he was entitled to qualified immunity. The district court reviewed the BWC and concluded that the footage established that Officer Rolfe did not use excessive force and that he was entitled to qualified immunity, dismissing the case. The plaintiff appealed and the Eleventh Circuit considered whether the district court’s consideration of and reliance on the BWC at the motion to dismiss stage was appropriate. Even though the BWC was not attached to the complaint nor referenced in it, the Eleventh Circuit concluded that the district court properly considered the BWC under the incorporation-by-reference doctrine because (1) the BWC showed the events central to the claims at issue, and (2) its authenticity was not challenged.
A Possible Future for the Seventh Circuit
Esco outlines the Seventh Circuit’s view on when the consideration of video evidence at the motion to dismiss stage is appropriate, which is limited to when either (1) the video is either attached to the complaint as an exhibit, or (2) referenced by a plaintiff in the complaint and central to the claims. However, Johnson illustrates a possible future for the Seventh Circuit. While the Seventh Circuit’s approach adheres to the traditional notion of limiting motions to dismiss to the “four corners” of the pleadings, this approach enables plaintiffs to bring claims that are untenable in reality but nonetheless survive the pleadings stage and force defendants to undergo needless litigation through discovery and summary judgement by not incorporating video evidence that conclusively defeat their claims into their complaint. In contrast, the Eleventh Circuit’s approach gives defendants an additional weapon against frivolous claims and balances the scales a bit more at the pleadings stage. By taking the power to bring in conclusive video evidence at the motion to dismiss stage out of the exclusive purview of the plaintiff and sharing that power with defendants, the Seventh Circuit could add an additional defense against frivolous claims, increase judicial efficiency, and potentially lighten the burden on the federal court system’s resources. While the Seventh Circuit has not adopted the approach taken by the Eleventh Circuit as of yet, Johnson provides persuasive authority that we can safely assume will be used to try and nudge the Seventh Circuit in this direction.
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