know well that would mean the both of you have some rebuttal time so that being said you know i think it is so since i think we have obviously all of the judges here have a sense of what's going on here i'm not going to say you know for your preference i think just argue it most logically and tell me how much time you want to save on rebuttal or i and i think i'll probably address both points briefly probably make sense and then so how long judgment for we've laid out in the brief that the discretion of the district court in such a situation is limited by various policy due process points principal of for example the fault is reserved for stream cases the benefit of the doubt goes to the party against whom default was entered sixty b relief is granted liberally i think none of those factors were at work in this case and that it should be reversed first of all the the court just record decided the cases under its inherent powers and so it had to find mr  personally culpable they had to find that he engaged in bad faith kind of should the court of done that or should at the court have looked at the fox factors well that's one of the fa factors the culpability you know i think it's something more that way if you look at the falk factors you have to look at all of you can't just look at one correct but i think the district court erred right off the bat strongly finding bad  conduct on the basis of no evidence now so so i'm i'm a little confused and maybe i just missed this in the papers that the court seems to have relied at least i made a mistake or something like that that i missed that no there was very messed up on the question of did mr gonzales know he was being summoned back to the court and the problem there speaking for what happened there is absolutely no way he could have personal knowledge that his messages to the dominican republic where where mr gonzales was to the phone were picked up he could know he left the messages but he couldn't know that they were picked up and he's he essentially said they were picked up and then sort of corrected and said well we believe they were picked up and it turned out he was just guessing and in fact that we do have statement that he didn't pick them up because there was no phone service there and this is where that principle with respect default judgment benefit of the doubt there is no evidence but at least the district court relied on at least in part where these very explicit and damning representations from the steward why wasn't there something from mr di because he didn't find out about it until the court came down with this or the proceeding was over yes the record mr day because the record there was no record yet when they were asking the court to not enter the default and then to lift the default and it was went in the court's order itself the court said i'm not going to believe anything here because it wasn't mr de speaking it was mr beck's i mean it was mr beck speaking who gave the declaration it was mr day my that time it was over so i'm assuming that's why he didn't do anything at that point i guess i guess from my point of view i'm wondering i've stood in your place whole lot in my life and as the lawyer i'm the representative for the client  what i know the client i'm having a tough time understanding why when the lawyer knows something and the lawyer knows that the client is to be there the  knows that that's what the situation is that the client can come out come in and say well my lawyer is a bad agent because the only way you get off here is my lawyer is a bad agent they didn't get a hold of me they let me do things i shouldn't do which is i mean i'm having a tough time with that i understand that night i understand judge my client go someplace and now i can't contact them and they don't answer their phone but they're so came because i let them go i think that in another context the ninth circuit is address this in a case called gibbs that we cited in our brief i'll be it in a footnote but that was a hey b s case and it was a case in which the lawyer failed to communicate to his client that the supreme court had ruled on his appeal and denied it and so time was running on his baby's petition to go to tell him that the supreme court ruled the client missed the deadline in the court there so if you fail to communicate some key part of the case to your client it's not fair to attribute what you know to the client was a whole different set of laws that apply in the hague and when you return where the lawyers made sure that it was known that they had left messages but then said before correcting that they were i mean you kind of wondering about the the conflicting representation from the standpoint that if mr consolidator officer gonzales the officers that were involved in the actual physical contact were found to have qualified immunity right one w three were found not liable for excessive force ok so so the officers that are involved in the incident mr gonzales wasn't there right right so and he's a supervisor right so he is now responsible essentially that the plaintiff or in this case that the appellate on that i got nothing right but mr gonzales is responsible for everything and attorney's fees besides right correct you go does the county have to pay for that it's not punitive damages that likely it's in the course and go but is was there any offer a proof made as to he wasn't opposed by the other side either was this this is what some manner they never got beyond the elements of the supervisor of liability claim no evidence they were never made to make an offer prove this was a true windfall as this court has characterize judgment in favor of plaintiffs because the plate of lost against everybody including the county didn't it's the evidence it did have and show didn't carry the day for the ok well that being said why then if you know if his lawyer made these wrong representation and i think it's probably clear that the judge was after all this time was spent and they're ready to move to the second phase this irritated that feel said we're not going on to the second stage right correct so the lawyer is in fact the judges are tied up with employers as well if the lawyer but so white i think they've my colleagues are saying well then why didn't someone if that was really the truth white and they do so why didn't you know why didn't the lawyer fall on his sword and say hey look i said that but i know i really wasn't being accurate with the court well mr beck said it in a declaration only the problem was it wasn't he that was speaking which you know that's what i don't nonetheless appeared correct nobody moved for a default on that no so the best we can say is this is a sanction for gonzales not being there for not coming back to for being there in phase two of the trial it was the right advice one he was there and that's the thing i mean how can you infer an intent to abuse the litigation process when he was actually present two days when  when asked to be there when they played the video of his interview of mr figaro and he was available to other days then his lawyer he says i'm going to i'm want to get engaged in the dominican republic his lawyer says go i mean sanction for contempt that court never said that so it's kind of a sanction is it's a sanction for not showing up well what if that is a contempt because there are many defendants who go to trial and don't show correct i've represented a lot of them in my life truck drivers who drive trucks and don't come back to the trial because we can't find them so i'm representing the company without the driver and i'm going against the other party you don't take the fault and you if it's a sanction for contempt for not showing because you're a party there's absolutely no rule for it chris so that's why i'm trying to get from your mouth why is it contained if it is i don't think it is a incident discovery sanction it is not a discovery the court was of the mind that he had to be there because he was a party i understand but i then in effect it seems to me what you're saying correct i didn't get that any of the briefs and i'm going to ask your counsel of the opposite about that too i don't know what this was for i don't know your court is very angry or yeah the court was a degree but you did give sanctions for being angry really disgusted but contempt you got to have something to be contemptuous about and the just or court was determined from the outset that it was going to be a default judgment i mean she made that clear and that was another due process problem because well ok if he wasn't there you there are also two you could go ahead with the trial and you could advise the jury that this person isn't hair and drawing negative in so and when you leap appropriate sanction would have been if there were sanctions permissible to sanction the attorney i think that's correct i wasn't there when the cartman to stroll in right there was mr day agree ok it's gone over all right already i'll give you some time for rebuttal i'm not going to tell you how much right now i want to hear what we'll see how long we take with the other side but you'll have some time to say you're making about it qualified immunity there but you only have fifteen minutes total basically so unless i give her some extra time so you're going to talk five he's going to talk five and then you're going to receive jointly reserve five for rebuttal is that right that so i will tell you that seated at counsel table sometimes people at the podium go crazy and then you're thinking they're taking up all your time so please be respectful of that but i may remind you of that i will give you five minutes ok if we take a longer with him on the questions i'll give you five minutes so you don't need to rush to the podium and pull them off all right so all right so state your name on the start the time so that would be interesting officer can sell is she was there for the first phase then mistakenly believes maybe because all the first phase the feds were  found not liable mistakenly believes he's free to go and does so with the least acquiescence of not explicit permission of his counsel then he's in a place  where according to him he doesn't have cell phone access his attorneys and set of telling that to the judge make up all the stuff about oh he's turning off true so the problem was not mr gonzales at all mr gonzales wasn't doing anything that he didn't think he had full permission to do write we believe that mr gonzales in fact something wrong what number one gonzales so inconsistent with the representation that he was in court or through was not seen in court at any time counsel for gonzales represented he was there for four straight days but the record shows that on the twenty contemptuous because he did not appear because he wouldn't give his testimony that he was supposed to give and therefore it's contempt what he or you've got to say there's a discovery violation or you've got keep its process allowed for if you sent administration of justice so in your view she does not need to follow the federal rules of civil procedure in a trial she can just go outside here i'm going to make you pay the attorney fee of the other side for every day you're not here i'm going to do this i'm going to do that that's civil contempt if it's criminal content she had to have a hearing there was no agreement was that they didn't need subpoenas they had to appear anyway and if they didn't appear you're saying that was a problem what case says that you get in the fault for a failure to appear i don't see any case of the top of my head well i've got a few cases that say a court cannot consistent with their requirements of due process strike a defendant's answer in or at the vault as exploded in the ante room of the sheriff's office right and all of those officers are found not responsible and then you know you never deposed him and you never made an offer proof of how he could be responsible for something that you know what it looks like to me that the judge is really angry with the lawyers is really angry that this guy isn't here and maybe the judge didn't like how the jury came out and so someone that so then by comes up with by well i know but it's hard not to look at it that way and you were just saying a minute ago that you thought his the real failure was his failure to make himself available as a witness so how can you have a default judgment  his role as a party as a sanction for his failure to appear as a witness if so if a witness doesn't appear that you as judge smith points you can charge him with contempt and hold a hearing and so forth but how can you possibly enter a default judgment against him as a party on the basis of his failure to appear as a witness which is what you say is the fault because anywhere says that if a witness fails to appear u k and in and if the witness happens also to be a party you can impose the ful your braves tell us what it is otherwise i got one more question you said inherent power right go outside the rules just do an errand or what do you do with  a lock oh engineering versus costal says before dismissing a case under inherent power a court must consider less drastic sanctions and the most serious criterion for the imposition of default is the misconduct panelized must be related to the matters and controversy was there any consideration of the last serious raise on the court concert that does fox us the courts not over your time so i'm going to give you five minutes ok which means that you guys don't have any rebuttal either but i'll get each of you a couple minutes for rebuttal after the whole thing thank you i represent mr figure we represent mr figure or with me and i'm here with respect to the cross appeal as to the qualified immunity finding i understand the court has read all the briefs so i'm not going to hammer on those things but i know very important point i think it was that did you think it's took an all or nothing approach to this case they attempted to defeat liability and with the exception of the finding of excessive force against pres who acknowledge that he was the one that was hands on but denied causing the injury denied really declined to provide any explanation how he could have been mistaken in the use of force that he did and we're not talking about the hazy border between what's permissible and what's not permissible as cited in of the constitutional violation yet so get to your point my point is that there was an affirmative defense alleged by pres that he was entitle to qualified immunity hole if you were fine with that going to the jury because that's generally favorable that's must plaintiff's counsel would rather have that but you lost they found qualified immunity you were not fine with it going to the jury and the qualified immunity in fact we made a rule fifty motion before it went to the jury that there was no evidence and that the evidence was sufficient to for the court to determine that the force was excessive and that there was no evidence to support a qualified immunity defense  you the answer to the first question is yes which means there's a violation of the look constitutional law then for the second step we call on him for maybe your character the hypothetical reasonable officer and she says our reasonable officer sometimes makes mistakes factor law and thereby commits an unconstitutional act though we may excuse the reasonable officer for such a mistake it sometimes proves necessary for a jury to determine first whether the mistake was in fact reasonable are you suggesting johnson is out of line with our constitutional law i'm suggesting that the facts and johnson were completely separate from the facts in this case there is no case that i'm aware of that says that when you're making arrest that you can have qualified immunity for breaking a person's arm and  contradicted testimony was that the arm was broken by a lifting and twisting movement there was a bio mechanic in an order you but this isn't a factual determination counselor i understand it says this is a legal determination we've now found a factual determination of constitutional violation and now we're determining if the law is such that the officer was onder plain notice that he shouldn't have done what he did all right that's the second part of the past i appreciate the question i want to address it the fact is that handcuffing too tight has been found to be not entitled to qualified immunity and excessive force the fact there is no case that i'm aware of that bone breaking force we're not just talking about snapping a bone we're talking about twisting it beyond its anatomical limit again but again counselor you are making the argument that there is more force than was necessary and you won that we're now at a legal determination correct we can't abide by all your argument your argument is that the jury should have never had that question the question of qualified immunity there are two paths your question and i said but johnson says they should well johnson first of all the way that the question was given to the jury we don't believe that it should have been given to the jury at all because the historical facts and almost all the cases i believe all the cases talk about when there's an issue of historical fact you have to let the jury decide it the issues of historical fact were decided here the man's arm was broken it was determined to be excessive there was no evidence put on that there was some reasonable basis for the officer not to know that using bone breaking force was too much when the man is laying on the ground his arm is lifted and twisted they didn't even address that they denied that they broke the arm the denied doing anything but putting the handcuffs to the back so at that point when the jury found excessive force that the court should have stepped in and made the determination we made a rule fifty motion both before it went so  i didn't know the difference between my firearm in my taser and somehow he got a pass on that that's not a case where i'm twisting the arm and i'm raising the arm but i only said that i put it behind his back they denied doing the act which led to the excessive force so they didn't provide evidence that could support a qualified me where is the hazy border this is such a clear cut i mean literally it's a clear cut break the man's arm and they don't supply any justification they don't supply any explanation they don't provide anything for a jury to decide because historical facts have been resolved it counts for i'm going to ask you one more time and i want you to think very carefully about your response instruction number thirty two is the jury instruction given to the jury on qualified immunity and is the only reason the jury was allowed to answer the question you think is a violation of the law suggesting that asking a jury any question as a relates to qualified immunity is a constitutional violation we're talking the second prong i get it i'm not going to go to that distance because if there are factual issues that need to be resolved with regard to qualified immunity what factual issues would need to be re when the law is as the officer on notice of supreme court precedent or circuit court precedent which forbids him from doing this when the  president is there and it forbids him from acting i do not know i'm trying to figure out what the question could be well or a jury to decide and i thought that was your and you can just address the qualified immunity issue yes so what was johnson said is that it's sometimes proves necessary for the jury to determine first whether the mistake was in fact reasonable presumably that is because in some cases there's a factual issue still to be resolved what was the factual issue still to be resolved once the jury had to sermon that the success of force they had to decide whether this officer could have made mistake in judgment call that was reasonable as to the amount of force used and they would do that on the basis of these same disputed historical facts that they resolved under instruction that the constitutional violation had occurred and then the facts are so intertwined it's the same evidence under those circumstances could a reasonable officer believe that the amount of force he was applying was legal it was god i pray daily enjoyed your answers because i think they have been straight to the point and they've gotten us where we got to today but i'd like you to find me a case outside of johnson which dealt with excessive force again where after determining there's a constitutional violation one asked the jury to determine if it's reasonable to violate the constitution that's what you really asked the jury not quite well you actually said you asked  you could reasonably but mistakenly believe you were ok in acting how could you miss what other context do we suggest then the officer could be mistaken as to the law and therefore out of it constitutional violation in every other case we say the law is this it's absolutely clear you're on notice so the mistake of fact was as to the amount of force used to get figaro his arm out from under him and behind his back in order to cuff him it's it's not a ocean the same facts that would prevent summary judgment on the excessive force the same just beautiful facts would prevent the court from deciding qualified immunity because the facts were so tied up that in the decision of you know the amount of force torahs this is not an excessive force case but the tourist case cited in the brief was in a rescue case and what happened there was four deputies were given qualified immunity in a fifty a motion and the ninth circuit found that it was improper as to to and remanded for a jury determination go ahead with the rest the trial or whatever because the same facts that precluded summary judgment as to the rest would determine whether reasonable belief could be possible under the circumstances my worry is that the court and counsel maybe if they agreed to these mixed up reasonable with what it was the jury was determined because it seems to me if what the policeman did was reasonable it's not excessive it's believe if it if it's reasonable under the circumstances of what's going on there in his head the in what was happening and what was doing then it is excessive i'm having a tough time understanding out that has anything to do with whether the law as it is at the time it was done is different the laws got to be a pluggable to every policeman the same if it's the law and he breaks it even if he doesn't know about it i'm having a tough time understanding how he gets out or we'd have everybody come in on a qualified immunity case and we'd say well i didn't know about it  additional factor of the reasonable officer what ten the reasonable officers had whereas the first prong you've got to determine the factual drift speeds and they can also factor in that the arm was broken which the officer doesn't know at the time that they could believe the officer didn't know he was breaking his arm or that that amount of force would break his arm but it didn't fact so they say yeah it turned out to be excessive but when you were covering him you didn't know that right reasonably objective yes no excessive force or not excessive force that then the second part is what an officer in his position reasonably believe but mistakenly believe because the mistake has been found it was excessive defense that well could a reasonable officer in his mind mistakenly believe he was not using excessive force of that word defense then i can see a jury question but that's not the situation here and reasonably believe that he was ok within the law i think the perceived your hasn't been spelled out in the supreme court certainly they handle mostly summary judgment cases what's really clear is that if there is no dispute about the historical facts and there's just a dispute about what inferences you could draw from then the district court decides it but if the problem arises when the same facts will answer both questions and the judge here decided to send it all to the jury and see what happened if something goes wrong and she just could not agree and she looked at the record in there was no substantial evidence to support that anybody could have made a mistake under these circumstances then she would turn around but she didn't find any problem and so we ask that the judgment in favor of paris be left in place but the default judgment ok i think you right you have three minutes so whoever wants to take the three minutes and if we have questions that will come over thank you counsel said that she believed that this was when the extracted from under his body the evidence clearly showed that wasn't the case there was expert testimony it was an contradicted on that in any event the the question here is should the legal question have been submitted to the jury as the second point that i wanted to make is that the way that it was submitted to the jury didn't acknowledge that this was an objective standard and it asked in the question number six quote did that defendant prove that at the time he arrested plaintiff it was reasonable for that defendant to believe that the force he used in arresting plaintiff was not excessive so there's no reference to an object of lee reasonable officer it's really asking the jury to put themselves in the presence of mind and make a determined determination in any event that wasn't proper to submit to the jury in the first instance in the way it was submitted was not proper it's our position and we did not agree to that instruction we objected to it in the record reflects that we felt and consistently so that this was a decision for the court there were no facts left to decide once the jury had decided excessive force there were no facts put in the record by defendants as i said before this was an all or nothing proposition they lost on excessive force as to pres that should have been the end of it because there was no evidence to support an objective lee reasonable belief they deny doing it they denied the acts that were so are you saying even if the court had made that determination you're saying that just because they find so i agree but in this case generally i don't want to go generally because there are facts that could be different obviously but in this case once the resolution of the excessive force in this was grotesque excessive force was made there was nothing left to decide how could an officer objectively reasonably believe that he had to twist the arm past the breaking point well the court kind of set that aside right and didn't the court looked at it and sad didn't do that right so you essentially got both a jury consideration and court consideration you got to both well and he lost both times there well your honor sometimes that's why we're here that's why there are there is a higher court we believe and i think that frankly the district courts have some trouble with where the line is and what they're supposed to do what the keep to themselves they give to the jury but we believe that the law is clear enough especially in such an egregious case that this could not be reasonable no reasonable officer could believe it was reasonable in the choice they made was to put on evidence that just simply denied it they lost they didn't explain oh well i had to twist his arm because x y z they didn't do that there was no evidence to support a jury determination because there were no facts left for it to be determined and the instruction given to the jury didn't properly advise them of objective reason list and we believe and we contend that it never should have been because it was a legal question i hope there's some time