session here i'm going to try to avoid regurgitating everything that we set forth in the written briefs with the court's indulgence though i think i'd like to spend just three or four minutes before we turn to what may be the more interesting issues of the impact of the  know have home for dinner indeed it's not about whether or not the arrest was lawful it's not about whether it was ok for the police to beat him because he said some nasty things before they got there that's simply not the issue here  denied the request by counsel to be allowed to go into the whole stabbing incident and it goes on for ten fifteen pages and i counsel was very explicit asking judge marshall may i say this i want to go the trial it seems that the tactic is to portray mr gallagher is a bad person and to divert attention from the underlying merits of the case and that brings me to obery which the party that benefits from the error not the party that was the victim of the air and of course ovary the opinion states that it is clarifying some confusing preexisting doctrine it's not really creating new law but just sort of didn't have the guidance of obree at the time you briefly kids can you give me your best argument because i didn't know that your brief did not contain any argument addressing the form of the surety of instruction that judge marshall gave right after the offensive comment was made what's your best piece for arguing that that jury instruction was so insufficient that the district court of used his discretion in denying the motion for mr right well your honor of one case that leaves well if we're going to do that and i agree with you i think that's what the law says what do we do with the fact that the district court had previously issued a written ruling on the motion in limine in which she clearly said that she would permit the witnesses to testify as to the circumstances surrounding the arrest and then when trial counsel moved for sanctions against the city of what's called the ms attorney at the end of the and i think that if you go if you go back and look at the colloquy that took place the oral colloquy right before that opening statement i think the court went back into that and i think that what the court ultimately went out of saying as to that more general issue was that it would reserve it wanted to in question here was a very i think very very explicit and and really in light of counsel's if you go back and you look at those ten fifteen pages it's very clear two or three times counsel directly asked may i say this i want to say this on my opening statement i want to refer to these threats may i do it and the court said no with respect to that particular request and again in light of the inherently inflammatory nature of that of the allegations hey i'm go kill before i'm going to kill my dad i'm going to kill you instructions and willfully engaged in an attempt to solve the opening statement with with information he knew years ago we have a different case we have i mean you want to argue that it was crystal clear from the colloquy but you you want to downplay what the court said in writing in the written order and i'm trying to balance that against the court's subsequent ruling on the motion for sanctions that it wasn't  right understood your honor a couple of things on that issue first of all i think if you if you go back and you look at the fourth case and as a matter of fact the the violation was much less clear and again if i could focus the court the written motion of the money was was much more general it was it was much more gentle it was directed more broadly at we don't want evidence of prior crimes prior bad acts and generally to come in the ruling that we are specifically objecting to was very am still wrestling though with what was wrong with the cure give instruction i mean here we have a single reference in the opening statements the jury is immediately told that the arguments of counsel are not evidence and you know could sort of that and then we have two months of trial that fall don't we have to look at you're asking us to overturn a two month jury trial and on the basis of what something that occurred in less than ten seconds i'm trying several  that the jury would have come out with a different verdict i want to make sure ours this is statements made or very prejudicial allegations that are made during opening statements certainly could have at least as much of a chance of permeat the jury could have had a question but let's assume the answer had not come they wouldn't have known why what he had done but they would have known that he had to do something because the police would have been called right and we look at and multiple murder you know so so the fact of itself that he was arrested of course that wasn't even contested the lawfulness of the rest rest was not contested so the jury was aware he was arrested that was not an issue but that doesn't mean be reasonable under the circumstances is going to vary depending upon whether you're making an arrest for trespass versus an arrest or assault with a deadly weapon right i understand your honor i think though that if you take a look at the allegations which are that understand that police have tried to portray this as a case in which all the evidence is on their side but i think if you go back and you take a look for example when mr gallagher did finally find a doctor in the prison system to take him seriously enough stand and backs away from that story oh no i mean you know somebody asked him the friend who was who didn't like him who asked me to you know tell the story so that she would have something on him and in fact the way the point if i may it is not that mr gallagher would have won who would have won the point is did mr gallagher gallagher get a fair trial and i think that this is a case when you go back and you look at all the evidence that could have gone either way this was not a slam dunk either way and given my interpretation  pelleas burden to show that more likely than not there was no harm finally if i could just i need to reserve some time here i'm starting interrupt you but is there any distinction between the defendant here the city versus the county i don't i'm having a hard time even if there was prejudice that infected his claim against the city how that is relevant at all to a claim of deliberate indifference on the part of the and you're sitting there on the jury are you necessarily going to just you know you may well determine you know what first of all i'm less likely to believe this guy second of all even if i do believe him i don't care because he got what he had coming to him now i don't think that the charge that to the treating physician i mean we're talking about a jail health care system everybody is in there because they did something or at least they're accused of having done something right so are you suggesting that an average juror would not be able to put out of his or her mind in the valuating whether there was deliberate indifference to his care i don't see anything in the record where there's any indication that the treating physicians had any knowledge  what this guy was in jail for them in there they're trying good to know what the charge was they're trying to decide whether or not he had an injury that's right i think that you're one of the issue is how the jury is going to weigh the evidence or is it going to weigh at all you can imagine if i come out with with a juror even think that that was relevant on that claim that that's where i'm having a problem if you if you look at the transcript your honor i think first of all you got the merrick bob you know i don't know if you recall that but you know very well respected l a attorney who issued his semiannual reports and this came in front of the jury and he was sort of watching out for them that he was saying this is appalling this is this is abysmal i'm a reasonable jury could have come out either way to do with why of how prejudicial people think certain types of statements and allegations are but again i think if you have a point of a couple of different defendants with some somewhat related claims and you come out and you say such heinous things about this this plaintiff if it's going to upset the jury what's going to make the jury decide i want to believe this guy i think the average juror is not going to parse that ok well i'll only only think he's a rotten guy with respect to this claim and not with respect to the to the other defend here mr stein is representing the county of los angeles at the least we discussed and decided to split our time ten minutes each well i will be addressing is the alleged error and it's a fact and mr stein will be addressing the o b case in issues related to the first thing i'd like to say is that if there was an error in what happened it was an error that was prejudicial to the defense and i think judge nelson's question was was right on point why would the court exclude from evidence the very basis for the police officers being their grain versus connor taught us a long time ago that industry whether force used by a police officer is unreasonable you have to look at all the circumstances known to the officer at the time of the event one of the things that they were told was that this plaintiff's had threatened to kill his father had threatened to kill carmen chen astin and in that context that he had stabbed before and w not in the prior order on the most first of all there was no motion and lemony to exclude statements that were made at the time of the event the motion in limine was to exclude the numerous prior convictions the plain had other bad acts and the conviction that resulted from this incident which was a conviction for making terrorist threats the court granted all of those motions what i tried to clarify before we started to trial was the statement within  statement and that is that he had told miscarriage than he had said before he would step again now that's what i was talking about because it was clear to me from the judges prior order that witnesses were going to be allowed to testify about what  before the officers went there one of the things that's relevant to the officers entering the room were the plaintiff was with their guns drawn if they were there simply because the plaintiff was drunk and his father in his mince his words if you go back and look at the transcript of this five bar he starts out by saying i may be incorrect but it's my recollection that the court ordered that what carmen he goes on to talk about those statements and then he concludes his statements with on the other hand if the court didn't make that order then i'm not correct so even he was unsure that the court's order was to preclude all of those statements and frankly i was misconduct that he'd been involved in as part of her reason she feared him what was right right that why that got kind of all balled up here right and the judge judge marshall in august this trial started october and august issued a written order addressing those issues precluding the use of prior convictions prior arrests and even a conviction in resulting from this case so in my mind there had all been resolved and the only issue there remain was that statement within the statement you had to before you put her on the witness stand you're not going to be allowed to say that one of the reasons that you fear that he meant what he said was that if you write you about having stab somebody previous exactly exactly i mean that's that's the issue and what i said my opening statement was that the plaintiffs have threatened to kill the scanners didn't i mr gallagher and none of the stab i said before i'll say again and i was frankly very surprised when judge marshall  previously stated you know i called her to testify that the night before the incident the late evening before the early morning of the incident he came to her house said he had been in a fight looked like he'd been in a fight that he was intoxicated and then later or actually early morning of the next day he went to his father's home and that's where these events occurred so i think it was very clear to the jury that the events that he described with the officer were fabricated that the injury that he had was something that he acquired i believe that the food for less parking lot where he would occasion to drink with friends and i just simply was not ever here and if there please the court my name is martin stein and i represent the county defense which includes the county of los angeles sheriff baka and dr new fusee a procedural point i wanted to make just that will take a moment it regards dr who had the the district court grant summary judgment on the deliberate indifference and a cause of action plaintiff later i feel of the judgment which included apparently the summary judgment but in their opening brief make no argument as to the doctor as to why the summary judgment was incorrectly granted we pointed that out in the joint you're brief on his behalf there is still no comment in the reply brief so we've asked the court to take that as a waiver and affirm the judgment a lucy on the grounds that were stated in the summary judgment with respect to the merits i think the plaintiff originally got it right in his opening brief when he set forth what the standard of review was in this conduct case of course agreed with that presentation and set forth that rule in our own brief which is that the misconduct must be found to have so permeated the trial as to lead to the conclusion that the jury was necessarily influenced by passion and prejudice in reaching its verdict when it comes to the question of showing on these misconduct cases cases like hemmings which decided in our brief make it very clear that it's the appellant's burden to establish prejudice and the important fact if that is in fact the correct standard in misconduct cases and we've cited numerous cases from pages twelve and thirteen regarding the standard of review for attorney misconduct assuming there was misconduct plaintiff would have the burden in his opening brief to set forth the evidence showing that this miss carr alleged misconduct had any impact on the jury's findings but try as we may to go through that opening brief or even the reply brief there is no account complete account of the evidence on both sides to show that whatever misconduct it was alleged that it had an impact on the jury i think even more important here there's a piece of silence on this record which is ignored by the plaintiff in his reply at one point in the reply brief he mentions that the motion for new trial was denied what was denied was the original motion for for a mistrial there was ascensions motion that was denied but i think it's telling the plaintiff's attorney a trial who was very well noted in the southern california area for his expertise and try civil rights cases did not file a motion for a new trial on the grounds of attorney misconduct how on earth can a can the court of appeal this court be in a position to judge the misconduct issue when the trial judge wasn't given an appropriate opportunity by plaintiff's own action to judge whether or not there was  time for i think it was for your trial my recollection i don't have the record front of me is that it occurred i think during the same time period that a motion could have been filed i thought it was originally written motion for sanctions but my memory is that and i wasn't trial counsel i don't remember for sure when it occurred but he wouldn't have known that your honor until there was a ruling on the sanctions motion but if you wanted to make a record for later appeal if this was the a big issue in the case one would have to assume the since he made a motion for mistrial he would know that if this is really serious error now is the time to finish my record let's see what the trial judge is going to say here we have these comments at the very beginning of trial and then we have an oprah case which the court the panel that wrote that decision made it clear that they were trying to clean up the biologic difference of opinion between other divisions or other panels of this court regarding whether  s kind of an error or whether prejudice should be assumed and therefore the party who was on the other side of of the ruling in this case the defendants would have the burden of demonstrating that was more probable or not that the burden under the misconduct cases to show error and show it was prejudicial but even if they didn't because they didn't do their job in their briefs to demonstrate that this was a close case mr jacob let me see if i understand  your honor the first one is oprah assuming that that standard set forth in the case is the standard for the entire ninth circuit that standard only applies in close cases and we say in our brief th instruction that right after making its ruling on the motion for mistrial and then at the conclusion of the trial made another cautionary instruction to the jury i don't know what other instruction she could have given which would have not highlighted the  well i don't think it was about the point his position i don't believe it was so overwhelmingly prejudicial under the facts of this case and we don't believe it was misconduct at all but even a potpourri applied this isn't the case that it was  focusing on the misconduct cases with a different standard or a view for the court i don't think the standard review has changed if we look at the standard from the misconduct cases that we must look at take into account all of the circumstances we have several factors here of improper evidence or comment by counsel we have the corrective instructions given twice case law saying we assume that they will be properly follow followed by by by the jury we don't have any argument by plaintiff in his opening grief or even  medical care that mr gallagher received did not rise to the level of deliberate indifference they have not put anything in their briefs opening or reply to demonstrate evidence that with respect to the actual care that mr gallagher attorney involved for ford motor company had intentionally done something to violate the court's order and because of that sanction the attorney at the at the beginning of the trial granted in this trial and later  supported what the trial judge did and we find no abuse this is just the opposite side of the coin the trial judge as the court has noted at the end of the trial on the sanctions as you said i think there was a misunderstanding she never says on the record or anywhere yes i've talked myself into a bit of a corner her so i'll just make a couple of observations with respect to what we just heard first of all i think it's worth pointing out with respect to the medical treatment and whether that met the standard or not that clearly was injured but if they didn't if they didn't see the injuries that doesn't help us decide the question of who delivered them right well again your honor of course we've got these these two somewhat distinct theories going on one is the delivery of the injuries not which way with we were or what verdict would we issue with we were trying the case to the question is is it a close enough case did pelleas demonstrate that it's more likely than not that the jury would have come out the same way regardless of course you also have the fact that the injuries had to come from somewhere else but we don't know when thinking right right but again absent the inflammatory and prejudicial comments that were made at the very beginning of the