commissioners were under the oklahoma government claims act for the negligent use of excessive force importantly i want to point out to the panel there was no constitutional claim raised against the board there was no mon counsel during the trial we think this is an important aspect that affected the ultimate judgment or verdict by the jury as the court's aware we had brief this issue that there was a motion in limine filed with the court specifically several instances where this came up i think both the talents and the at least agree that the wittenburg case is the political case that would dictate were the factors that would should be employed in determining whether this conduct was appropriate or of these elements were satisfied the st element is basically the extent of the improper comments whether they were repeated we have cited in the record numerous occasions where players counsel made reference to this investigation morgan three separate times that we can know just off the top of our head of which there were sustained during one of those i actually moved for a mistrial due to the reference to the investigation when when was exactly right but immediately after that the plane's counsel made an additional reference to the same investigation so we think that we have sufficient occasions to satisfy the st factor and when i think it's also important to note that this was not a lengthy trial this was a approximately three days of evidence in the trial and the number of witnesses was also relatively limited so the impact of these improper statements carry more weight in what the damages in this instance we know that the court in of itself found the compensatory award to be excessive and reduced from three million dollars so we feel that the factors wittenberg are satisfied and that that in this instance against the more county commissioners that required we believe two separate injuries for damages to be warded against each defendant that was not that we had requested that specific instruction and we believe the reason that's important is that as a score knows the that there are different standards of proof with respect to a state claim in a constitutional clash and in the way the case was tried in the way it was pled to mr morgan  not be held liable for the state climb and the county could not be held liable for any constitutional calling because of the manner in which the allegations were made we think that this required the court to set up two separate injuries for the damages were and i think this is even further demonstrated its mention i believe in the record by a jury question that was submitted by the jury during their deliberations they specifically asked for clarification of who was responsible for paying compensatory damages and who was responsible for paying punitive damages to us this demonstrates the confusion in the air in doing this because what has happened is now the judge upon his own action reduced ok well wouldn't there have been clarity based upon the form as it existed by the fact that the court did set out the nature of the calling that the that the defendants face and and whether there was a f guilt or not associate with those clients in other words when the jury have had in its reference that in fact there were separate claims as to which there had be a finding a lot of building and whatever additional instructions they had relatives  ling other words i don't i'm not sure i understand why there would have been confusion interjected by the existence of only one line in this yes your honor and we think the confusion lies in the fact that they're still because the reason state tort claim and a constitutional climbed are still had to be a finding of how much harm was caused by mr morgan's actions under the constitutional versus how much harm was caused by the claims asserted honor i don't know if the injuries are visible but the causes of action are as of mention with the with and they require two different standards or set of perth and so i don't disagree with that it doesn't matter that the civility the case i mean the compensation awards based on the injury in a visible you only need one lie possibly your honor under some circumstances but in this particular occasion we know that with two defendants and we know w statutory cap for the board that you know that the court then just assessed one hundred and twenty five against the board and assessed the result of it against mr bork where we don't really know if that was the jury's intentions and in fact we know that they were questioning it  on their their jury note and it appears that they were assessing compensatory against the board and perhaps the punitive against mr moore so the only way to potentially resolve that would be to have to specify the damages against each then i'll just you know briefly add to that your honor said with regard to the issue of the verdict form or the way the jury instructions were presented to them to the jury you know they were separate claims with regard to a constitutional claim that required a showing  which the jury apparently did it was just assume that that's that's the evidence you know that he you know he steps off his motorcycle he turns around calmly he puts his hands up and then he is just cold cocked in the face with either a flashlight or a fist that he is taking to the ground that he is handcuffed and then kicked and that and then while he's kicking he's yelling you know all these i think on page twenty nine of the brief i won't read them because it's replete with a lot of curse words but you know get out of my town here please don't ever come back and call you all sorts of think the evidence that the jury heard is replete with evidence that morgan acted a manner that was malicious and intentional and what we have here is you know again we don't have an l point  opposed to malicious conduct again you're the way again it's not reckless disregard i mean just this this evidence shows that he was acting in an intentional manner in what appears to be a complete bad fa  we argued this and he i think he had a question similar to judge holmes judge white did asking about how he could still be within the scope of his employment the baby lost his temper or something of that nature and will but we were arguing this is clearly outside the scope i mean this is  just him getting out of hand when he's when he's handling somebody this is saying that he is dragging him down hitting with a flashlight kicking him after he's handcuffed yelling at him kirsten at him when he shuts the when the e m t shuts the door to the ambulance he says i don't give her any stuff or all yes ok and that and so because and again i think in the jury instructions were confusing because they had all these instructions with regard to the use of force in the th amendment issues which required a showing of intentional conduct or malice or even using the term bad faith but then they also had state instructions with her saying no no he's got to be in good faith to be in scope of his employment and so they had these two conflicting things back there again going back to the verdict form but that's why time i don't wan now go ahead and if you thought went back to the verdict form i think there they probably were confused in the back even though they had the instructions the instructions were directly contradictory to one another and we argued this to the judge as well it was the way it was pled made for confusing instructions and i think the jury was confused and wound up finding outside of any of it again if all you have to believe is the plaintiff's version of events to show that he's outside the scope of his employment and so the jury's verdict saying that he was court previously found that it would have been obvious to morgan it was unconstitutional for him to use violent force a mr hoster when he was not resisting arrest not attempting to flee and there was no objective reason to believe that he pose an immediate threat to the officers or the public and the same evidence that we relied upon him responding to the motion for summary judgment  immunity and presented to the core during the prior appeal was presented at the trial plus additional evidence the evidence in this case as the district court correctly found a trust there are a number of issues that have been raised in this appeal i'm not sure which which issues the court is most interested and it's been it's been briefed  of the if you start by telling us which ones you think are most important well they're ok i would i it was a little bit difficult for me to to write the response because i do feel like there are a number of issues as i state and the river response brief that were not adequately that were not adequately raised that i think were forfeited or waived i think it's a i think  standards of proof given the different i mean constructs that were at play here why would that not have created an issue for purposes of just aggregating responsibility because it it is an indivisible injury one as the district court correctly found and secondly the standards under oklahoma law and the th amendment under the moral which is the leading case under oklahoma law the stork that's been created of negligent use of excessive force it's derived from the th amendment that's derived from bramber since conner it's a birch really identical excessive force in there or you can make the claim that the next wealthier the board is is it's liable for a constitutional violation this is it's a whole different standard set of standards is it not in determining the liability  policy or custom that caused the underlying constitutional violation in this case we had to prove is that there was excessive unreasonable use of force again virtually the exact same analysis that you would do under  versus partner and that he was acting within the scope of his employment and if so then the than the b o c c is live for the go i'm sorry go ahead i'm either he said you you know you have the expletive you know you are you he said you know x was the and you know just you know beat him up or or  gallons case civically references that reckless disregard is not necessarily inconsistent with the finding of acting within the scope of employment and does not necessarily rise where the court the court found that it was a federal agent who was actually acting to set up the plaintiff in that case on a drug charge would i would argue is even if you're going to argue about potential malice that would be even even more so but in the context of of law enforcement and whether you're acting under the the scope of employment the courts the courts public policy concerns generally make it appropriate to hold the law enforcement agency responsible of burning officers acts and the police agencies are expected to strictly control misbehavior by their own officers thus the courts in oklahoma and florida than officer may have in mind a governmental purpose when he abuses a prisoner or use excessive what was in mr morgan's head when he used the excessive force on my client and that's inherently an issue of fact the court that the jury was properly instructed on scope of employment and that it may be found even and instances of reckless disregard he was acting he was acting counsel in violation allegedly of the motion money that was in place and given the size of the jury award presumably one could argue that that suggests level of  incitement based on those comments and so what is your response to that we set this up in detail and in the brief the initial question that was asked by mr small and mr morgan was whether when he resigned he was under investigation by the sheriff's office the court allowed over over mr gibbs i believe the objection allowed him to answer that question he said no he said he was not under investigation so the evidence that actually came in was that he wasn't under and when he did when mr small and did ask about two specific instances there was an objection that was sustained or that it was a those questions were not  about and it was volunteered by mr terms that there were other instances where he seen what he believed to be excessive force by morgan and other similar injuries and that was not objected to that that that that evidence came in that testimony came in without objection as i stayed in the brief there's been no assertion of clear error on the basis of the and the reference that mr small and made to other instances of excessive force during the the closing argument was a reference back to mr thames testimony that came in without objection so i don't especially in light of the the strength of the evidence there was not if you could not find out of that you could reasonably find that these isolated comments and some some evidence that came in without objection so i mean that's not even on the table but these are the one question that was asked about the sheriff's investigation and then t specific questions about other instances where there is no testimony it's just not reasonable to find that that had any impact on the jury's decision and i asked you a question about waiver before you argument that he makes that the b o c c makes with respect to the sufficiency of the evidence including the rulings a summary judgment that those have been but those have been weighed and i think this really would this have been an trial that there was really there's really nothing wrong with with mr morgan's conduct but if you do find if you do happen to find that there that he was  t the force was excessive well then in that case he's acting outside the scope of his employment i mean it comes down to whether or not one way or the other either our evidence was insufficient to establish a violation  issues that are that are issues for the jury and it's about the sufficiency of the evidence and so on the way point your position because there wasn't a fit to be that arguments yes that's our