arrest but it was understood at the street encounter on labor day mr pierce was not under arrest nor was he told he was not predict go he was scared and he panicked after many minutes ambiguity and terror can become more terrible from ambiguity so let's suppose it was ill advised to run even if new york law allows it under the circumstances and no matter what plan phase the mine the issue  whether what happened thereafter was proportional to what was it mid lee a confusing accusation of petty theft if the accusation had been clearer why did the officers not rest of the time when it would have been safe to do so but the jury found the defendant's response by chasing mr pierce in a patrol car was not proportionable proportional to a reasonable law enforcement objective and that's the standard set forth in the dry vs mcquire for excessive force the jury with an instruction requested by the defense bound that the force used was an proportional and therefore excessive the district judge dispensed with that verdict however his reasoning to snow was stand scrutiny his opinion and part of tax plaintiff's counsel are going recklessness in summation a all but recklessness was a word the city suggested and requested and the court delivered as such it was not proper for any counsel to argue recklessness the defense invited any conceivable error on that point and it should not have been rewarded with a nd bite at the apple the court also alleged that there was a contradiction between point as opening and closing statements and i'd looked at it again and again i ask you to look at opening statement as milk toast and says nothing it contradicts nothing at least ninety percent of this case was grounded in testimony and credibility much of which conflicted only a jury could have sort of that out this court held as much and w the jury came to a very carefully tailored verdict and did not award an outrageous amount the police used a car to chase down and under arrest a pedestrian the jury found that unreasonable and that was on a miscarriage of justice especially given the defendants requested instruction of recklessness the court also carved out which witnesses to believe credible and to what extent they were credible reinstate the verdicts against police of civil lardo the same is true as to the verdict against sergeant macondo the court dismissed that claim under rule fifty but the court did not review the evidence in favor of the verdict jury reasonably found that mercado the supervisor should have done something before the hit whether to abandon the idea of chasing a pedestrian and a car in the st place or to tell lardo to slow down there were statements on the radio that indicated plaintiff was on the street so they were aware of the risk the evidence construed in plaintive favor showed of just one along with a potentially life threatening course of action the final point that i'll make in my statement is that qualified immunity was not preserved in many  defense did not press the issue as required at trial it invited the court to charge recklessness which is their qualified immunity argument on appeal but no party may invite error then seek relief given a strategic decision at trial that went wrong indeed in the memoranda submitted blow the defense never made the argument they make now that recklessness is somehow a novel theory it is not and has been instructed to many juries along with excessive over the years maybe dancey against change that by requiring the phrase objective and reasonability plaintive really had no problem with that but the city jumped in and said we want this instruction instead so what is unfair to blame plaintiffs for our going recklessness when the city invited the error thank you prior to that point piers was not it's undisputed that piers was not he he was fleeing from the police at that point and and and a suspect in flight is not seized under a stablished supreme court precedent entirely on the sidewalk before he decided to run directly across the street not just any street flatbush avenue the busiest street and downtown brooklyn directly in front of two vehicles that were pursuing him  st trial no one's challenging the jury instructions and the district court didn't simply fault plaintiffs for relying on the jury instruction but for making a last minute complaint and i haven't seen any case that has ever as the police have to stop before pursuing of a fleeing suspect and decide not to pursue if they haven't uttered the magic word you're of the wrath and in fact that would be  is not a case where the court simply substituted its credibility determination for the jury rather judge kogan looked at the physical realities seen look at the physical injuries which are classic weight of triggers i'm sort of wondering about whether it makes sense to say that if you get hit by a car miles an hour you're going to be squashed if you're if it's a grab thing blow were st of all were said outside of the hearing of the jury contrary to plank a statement that they were often the only see only statements that were make the jury were mr angeleno i'm sure you're going to d disapproval of the handling of exhibits which was based in fact evidence that had been specifically excluded was before the jury three different times and i actually found several more on my  review of the record but at the supreme court has emphasized it's inevitable that over the course of his wiki over the course of a trial a court will develop  this record and the whole evidence was was implausible the court there was good there were two categories what the court looked at and i think the court focused we're district court was very concerned that absent any oration by by the party on the issue of recklessness that that very well could have contributed to the ruinous of the car and then with the ground i i i would note i think i think it's absolutely of course common sense to say that if that car had been going anywhere close to forty miles per fallback position that has no bearing in the record she must seek testify that what they were going down flatbush avenue at forty to forty five miles an hour does not mean that plaintiff was hit dead on at that point he was rushed by the car mr rush speak who had no reason to lie at least that they didn't point out that they pointed out said that it was a pretty good and the injury showed whether at a tree on ish visit to the hospital he said x y n c rather than a b and c whether he got an appointment with his physician within a day or a month and a half it was under speeded that he requested one these are all credibility issues for the jury to resolve that are impossible for a court cut through and say this is what really happened which is what the st trial judge did i didn't want to get into oral argument about the antagonism and i didn't but i must say that the antagonism car the statements made in the post trial decision were unnecessary harmful to my reputation for no reason published in the s up  at the beginning of the case was that it was an intentional hit intentional coming many things and it can be intent to do a certain thing not knowing what the harm will be and when the judge allowed us to argue recklessness i would be subject to a malpractise charge if i didn't use that evidence whether or not we use the words intent or recklessness at trial there was no doubt that he was chased and the independent witness said that he was hit and that's how he was stopped and even if the court had used the object of an reasonab instruction that it should have under dancey the result would have been the same and we would have been happy to argue that thank you very much thank you ask my colleagues if they have any questions just curious no thank you j