thirteen sixty seven which is not to give jurisdiction for state claims against unconsenting states and it's also under spirted there illinois does not consent to tour claims against itself and it's against the state  and further it's can't be contested that illinois did not consent here it said it raised sovereign immunity as a defense in its answer to the amended complaint which the district court got wrong in the post judgment order it also it also appears in the district critz own final pretrial order so and then it came up again at the jurors at the jury instruction conference and again at the at the post judgment level so so certainly the plaintiff was on notice that the issue of sovereign immunity was in play and the and also the plaintiff's as the one who was invoking federal court jurist action and the burden of establishing it so once we put it in play that and the points have certainly an opportunity at any point to make them you know to get the court to make the decision because again jurisdiction is a question of law it's not a question of  they're actually and i'm not so sure about that when i read the illinois supreme court decisions dealing with these f s efforts to sue state employees for wrongdoing various kinds in the course of their employment we see that in the court relying for example on expert testimony and factual determinations on the merits of the claims to decide whether the exceptions for example for malicious wrongdoing or violations of statutes or constitutional provisions take the case away from the only court of claims well that's not quite right certainly there are not i believe that into the federal courts we do a pretty good job of trying to keep those issues separate it is not clear to me that the illinois supreme court and appellate courts do so to the same degree well well certainly they it's an aspiration i mean they try to do that so i mean they understand that it's a question of law that it's reviewed you know there are underlying facts and and and i think it  example ok right that was the one about mental care right mental health professionals and the supreme court winds up relying on expert testimony about who about differences between private and public hospitals or not they're not being differences to decide whether immunity applies that sounds with with that kind of background i can understand why the both of the attorney general in the district court in the the district court judge said maybe we should give this to the jury well well well let's say that that's let's say that that the factual i signed we did what the district court was saying in the jury instruction trying friends as i think about this right is that they they were saying that that the undermining of the the district court judge was implying that if if the jury found the fact of the battery happened then there would be jurisdiction and that's not correct because again well let me say because because it but the district court was saying was because if the jury finds it's an authorized if it's an actual if you punched if there was a threat if if there was a throw if there was a punch if there was a choking then we don't have jurisdiction in this is that pages say eight hundred eighty two through eight i was sorry eight eighty two through eight ninety two and so on and this is this is not correct because you know no state employee is authorized to commit a tort so that so the district court's analysis it's legal framework was incorrect i understand the logic and if you were in for dealing with federal issues i would agree with you when we make this is the illinois supreme court in twenty fifteen in the early tar case and against the university of illinois the doctrine of sovereign immunity affords no protection however when it is alleged that the state's agent acted in violation of statutory or constitutional right but also it said allegation you know certainly no jury would fight with gets to decide what's what is and is not a let again this is a jurisdiction of class and it's a question of law for the court a court may make running in the munity regime ok it also fits well for example with responding superior it fits with the way federal tort claims are handled we don't ask whether the plaintiff has a solid claim on the merits we ask whether the actor was acting within the course of his employment read pretty broadly that's not what i get from the illinois supreme court cases which seem much more reluctant to grant sovereign immunity where the merits of the case show that a state actor has violated constitutional rights was certainly constitutional rights i mean that's you know that i mean the fourteenth amendment takes care of that i mean you know certainly constitutional rights there is there's valid  immunity claims like that but for state or for i suppose i'm not really sure probably i'm state constitutional claims but but the question here we have to remember that the prison guards have a unique this is the this is the difference you said he was in an emergency there and had to pull you turn right but he didn't get immunity right but that but he was he he was not he was not in the high speed chase situation that the illinois supreme court is in fact the sort of thing that only troopers or you know law enforcement can do which and it was them well i mean korea and healing and on and the cases in illinois which case distinguishes couriered to say that a high speed chases but but but i think if i can if i can say what what the illinois supreme court does seem to be clear about is that when you have when you have a duty that everybody has which is what medical professionals have which is what health care professionals have you know in the more current in the more recent case when when you have those sorts of duties then that's the duty that you are that that you don't have a breach of that duty you don't have sovereign immunity for but as this court you day the scope of your employment you if if you make it for example the false statements which are not nobody's authorized to make false statements but that still is within your authority because those statements if true if not tortious were within your authority so the question here is do our guard is different from everybody else and the answer to that question is yes they have they have the authority to use deadly force in certain circumstances so the question an immunity i'll grant you but that's what this is a question of state law where our job is to follow but again you know fritz spritzes distinguishable and fritz distinguish was map which is one of the cases we rely on and there are couple things about that this was not within making reports to another agency was not within these defendants employments go and that was that was very critical to the fritz analysis do as i understand it do we see do we see case law distinguishing between misdemeanors and different levels of felonies for these purposes you know but what we do see is is for its distinguishing woe is me act as saying that you know when when the tour when what you do you guards have authority to make to to use even deadly force in when they are guarding prisoners and so so that's the question i mean the question why not do they misuse it the question is did they have a up to deadly force in and circumstances in a prison in the end about that question as yet about using it with malice if we have it and it would be helpful if you could identify the purpose of the employer that was served by the defendant's conduct in this case given the jury's verdict on the merits right ok well well first of all about malice if i may just i'm in malice you know met malicious prosecution he was involved in a lot of these arguments you see when he was working for the state government i understand you may be frustrated but that's the material we've got to work with items one of the things that it tells us is that if a least on the second a smaller claim and again this is this too if the court accepts our argument about sovereign immunity this would have a practical effect only on the twenty five thousand dollar claim because issue but well well and the reason i'm i'm talking about that is that there was a there was a there was a duplicate the memory claim and the jury found that there was no eighth amendment violation for this for the for the one claim that there was a twenty five thousand dollars verdict unfairly for the throwing of the choking and so the jury by definition found that there was no malice here because malice is what i need for the eighth amendment but what are the instructions tell them about punitive damages which they do to wor under state law right that's true but but again your honor there was there was no pleading of malice and there if you look at the complaint to the point that word does not appear in the complaint i actually checked it again last night i did not see it and in the second amended complaint and and in fact if the jury found i mean to me that was inconsistent that the jury would find that there was no you know malicious use of force in that they found that there was no  honestly i don't remember the instruction i'll take a look laurie assume it was pretty darn all right yes i would imagine i don't know that it included malice but but again the jury's the jury's own finding was you know if it found for smith on the eighth amendment claim with regard to the throw in the cho then then it necessarily found that there was no malice in particular johnson this court held on by not explained how this works and what it said is that you know the attorney is entitled to up to twenty five percent of the judgment and what happens is if that's not enough to satisfy the percent it's twenty five percent the minimum well what what i think what what it twenty five percent is the minimum if if the fees are more than twenty five percent of the judgment but if for example the judgment one hundred thousand and the fees are only ten only ten of the judgment would have to go to the fees because it's up to twenty five percent that plaintiff would not have to apply the court would not have to apply twenty five percent twenty five thousand to a ten thousand dollars fee award right and i didn't say obviously because it seems to me that the measure does go up to forget the numbers are here were three hundred some thousand of the judgment and how the p l o or i worked to know whether there was an equal protection bile and i guess the purpose of th society for the plaintiff i really don't know how to begin or where to begin but i guess i'll start out with the malice issue in there some ambiguity as to whether or not that was addressed by the jury and i think that a telling indication that it was is the fact that they awarded more than three hundred sixty thousand dollars in punitive damages based on the conduct as alleged and proven at trial by the defendants robert smith and gregory faull this case came about after plaintiff charles murphy was handcuffed him being escorted at the vande y correctional center in illinois as he was being escorted he was not resisting he was handcuffed and he was punched in the side of the head he sustained severe fractures to his overall that performed the surgery testified at trial to the jury and explain the significance of those injuries and the gruesomeness of the injuries at trial  defendant robert smith was asked and shown it document intitled constitutional rights of person to be questioned apparent that a clean miranda warning he testified th signature on that form was in fact his his signature and that can be found at the plaintiff's exhibit twenty three in the back file in the back file contains some sensitive materials that was introduced into evidence in its entirety back this past july portions of that back report were introduced at trial to the jury including this miranda waiver that was signed by defend smith also testifying at trial was a frank squires frank squires as a retired illinois department of corrections investigator mr twice testified that he was responsible not include any statement from defendant smith testifying at trial defendant smith when asked whether or not the claims as alleged in plaintiff's complaint would amount to a criminal act defendant smith testified yes that would and two separate occasions at least know that a tour which a criminal act a criminal act as alleged in the complaint amounted plaintiff was handcuffed and not resisting any jump personnel defendant smith punched plaintiff in the face and head thereafter said defended stroke plaintiff it through plaintiff into a cell causing him to strike his face on a metal pullet b offense based on injury a person commits aggravated battery when committing a battery other than by firearm he or she knowingly does any of the following one causes great bodily harm permanent disability relative to plaintiffs a waiver argument you see when the waiver seven we argued the plaintiff asserted in his apple e brief that the defendants essentially committed waiver of federal rules of civil procedure waiver through their conduct throughout the litigation specifically they demonstrated an intent to defend all claims on the in fact they filed two motions for summary judgment throughout the medication one was a partial motion for summary judgment which addressed plaintiffs federal and state conspiracy townsell if we ever said that a party waves an issue by failing to file a pretrial dispositive motion on it when it's raised in the answer and it's part of the final pretrial order correct i understand and  i would i would respond by saying i do not believe so however we are ok however the state consented to the federal court jurisdiction relative to plaintiff's state conspiracy claim that issue was ruled on by the state it was presented by the feds to the state for a ruling they made out of baden they didn't assert their sovereign immunity they have an eye they had an opportunity to insert that with assert that as well in their motion that dispositive motion they didn't do so but they did argue that that state claim should have been dismissed it wasn't dismissed was it was partially dismissed  but played its position is that they they consented to do the jurisdiction of you know what part was dismiss your mind me that the federal conspiracy claim in the state conspiracy claim were presented in one summary judgment motion so they were strictly stay allowed to bring to trial was ultimately dismissed leave it a rule of fifty or fifty nine motion after the close of the of the plaintiff's case which resulted can i ask you briefly to address the attorney feed issue under the presently ation reform act if i understand your position correctly the district court simply has unfettered discretion to decide what amount of a verdict up to twenty five percent of it should be court suppose the district judge just to just order the dollar out of the verdict for the fees while that would be discretionary it's twenty five percent it is pretty clear from the statute in the black and white  indeed i think parker would be responsive the third circuit helps you yes but the third circuit didn't really provide any guidance as to how such discretion should be to how that discretion should be exercised and the of the so the follow up question in essence is what purpose do you think is being served by that statutory provision i think the purpose is clear it's to say the state treasury funds it when you're dealing with the allocation of treat these claims more like tort claims in terms of their economic strain correct and i think at the same time from a logical that's at the correct word but from from a certain standpoint that you need to look at the totality of the circumstances and facts of the specific case when determining whether or not the full twenty five percent could be allocated plaintiff argued in this post tr of being punishment for not settling what with what's going on well it to a certain extent it was this this case went on for over two and a half years and we were willing to come to the table during the litigation and and it was it was are you saying the discretion should be exercised in essence according to the district judges a valuation of settlement positions pretrial i think that the every at more than that may come into relevant i'm sorry could you should that be relevant the assessment of reasonable miss and settlement positions i believe it should be a part of the component in determining what ok i'm not aware of any place in the law where we say how much you win depends on how reasonable we were insulting or not so i don't have any support for that i don't see it so i would i would i would argue that the severity of the injuries in the egregiousness of the conduct of the defendant would be more of a more of a something to look look into when determining whether or not twenty five percent should be there for in full force and here in this specific case again  the toilet bowl and leave him and they didn't call for medical attention he was on the floor for over an hour and a half in that i testify at trial the nurse the first nurse respond was the wife of the guard defendant fault she wrote in a report they didn't know how the injury occurred play to testify he told the nurse folks wife how the injury occurred she did remember placing the handcuffs on charles murphy the plaintiff earlier just before he was transported or escorted to segregation so he remembers the day he remembers putting the handkerchiefs on but he doesn't remember driving or calling or you know there's no question the state pays hearing well it would appear that there was immunity given where there was a to the to was supposedly taking the prisoner and cuffed to his cell and that's when he got beat up and threw him in a cell and stripped him in all the bad things that are bad to correct we're not disputing that transporting an wouldn't be here as i said i do know the magistrate judges comment about how extraordinary this verdict was based on the evidence that you showed if i could ask you briefly that was rosie attitude to address this immunity issue i founded at least in  looking at a number of the illinois cases the lead car case them most recent one fairly helpful because frankly that the descent describes of a regime that makes more sense to me in the sense of saying we don't want to confuse the merits with the with the issue of immunity but it was in fact the dissent in the in the illinois supreme court seems to be much more open to limiting immunity who are state actors who have have done serious wrongs to people part of my concern here is that i'd worry that you're asking us to in effect disagree with some some of our prior is triggered but plaintiff's position is that the illinois supreme court has rejected that and has instead followed the source of the duty in other words it was a defend think you to make that point you've relied on the fritz case to run fritz is another one is one of the friends was decided before our decision in turban and that sounds like just an argument that we were wrong and turban that's why i'm actually testified to by the defendants that what you know based on the allegations with these facts constitute a criminal criminal conduct in any you don't find those facts in the other cases and here he committed you know a battery and it resulted in serious injury to two charles murphy he was cause undergo a very painful surgery and the doctor testified to that and the jury listened to that punitive damages and i think that's way jim wouldn't question but it seems like a large percentage of this judgment or punitive damages is a career track i mean way more than unique governmental function allows you to violate certain laws and you know when your and law enforcement person engaged in a high speed chase of a suspect you are allowed to break some laws and you will have seven immunity for that and similarly the unique governmental function of prison guards is that they can use up to deadly force no random person can do this other than prison guards and law enforcement  i mean again but not in the course of employment i mean i cannot you know i cannot use deadly force in my state employment i'm not authorized to do that i'm not but prison guards are and again that you know one of the things we need to think about is and sovereign immunity contemplates this is a factor in the determination is will the judgment in the in a battery case against a guard you know control the actions of the state and yes it's sort of like qualified immunity will it has the same i think underpinnings of qualified immunity should guards be worried about a battery judgment against them every time they use force against someone and the answer to that is no they have a unique governmental function reciting there but it's certainly within the capacity of the person if you know a prison guard taking the prisoner from one place to another correctly it requires a prison guard to do that nobody around to do that if they did this in the in that line of duty and they went way outside of that in the way they did that's exactly right and i that's words and i have to say i'm a little bit perplexed on the sovereign immunity issue and also on  this was a crime and he has never ever before today compared it to aggravated battery so again if i can just close the the only practical effect of finding that there was no sovereign immunity over this claims would be to vacate the one battery judgment against the twenty five thousand dollar proximate battery judgment against smith and to throw and choke counsel and that and again because jurisdictional grounds you can be brought up a new in the proper court actually they do yes generally speaking i think they do and i'm not sure of that but but i will say that my understanding from