well could shoot this is judge livingston i'm i guess i'm having difficulty seeing why a reasonable jury on the evidence here could could not have concluded that officer macdonald failed to intervene i know i'm looking at the nd issue  but we ended with that i mean it is clear testimony that he's present for the arrest testified that he was was handled by officer mcdonald during the arrest not at the outset but  that during the course of the arrest and then there's this meeting of the officers to the side where it might be reasonable to conclude that there was some discussion of proceedings so what am i misunderstanding about the course of as to the conversation there's no there's no evidence to indicate that you know officer croom shared any information with him about the fact that he actually didn't possess marijuana or any other information it's it's an unattributed statement of someone t good to go which without resorting to sheer speculation i think does not prove any knowledge  participation in the i think that's right and i think i think the difference is i think there's also a reason why is it is there's relatively few failures intervene claims on false arrests as opposed to  case and the jury charge given the jury already decided that that did not possess marijuana the only evidence at trial that he had that marijuana was cruise's testimony that he witnessed the it that alone on the instructed the jury on probable cause using that penal law two hundred and twenty one dollars to ten dollars states a person is guilty of criminal possession of marijuana in the th degree when he knowingly and lawfully possess marijuana in a public since the jury found fifty of that the jury necessarily the term and that the that did not smoke marijuana or have any marijuana open to public view and there was no other evidence offered indicating that that's marijuana t contrary the evidence was the research at least twice without any contraband being that the jury necessarily found that they had that did not possess any marijuana and accordingly the lack of instruction on probable cause  be overturned nd circuit precedent hold that the jury's determination that an officer had an opportunity to intervene must be upheld unless considering all the evidence could not possibly conclude macdonald was at the scene testify that macdonald had his hands on to it that during the several minutes that the officer is healthy that while the officers searched the area but in the end did not find any contraband mcdonald then had a hushed conversation with the other officers after which he had that and his acquaintance were handcuffed and put and the police vehicle mcdonald then drifted up the arrest report that he had at the precinct based upon the fact the jury was well within its discretion to decide that macdonald had knowledge of the facts of the false arrest and an opportunity to intervene and its failure to do so violated tional right so there's not evidence that he  do we know that he saw the circumstances of the arrest that he was present at the scene and he handled your client so he was participating in the detention but do we know that he knew of the basis for i mean it's all circumstantial that he knew of the basis or lack a basis for probable cause macdonald argues as the trial he testified he didn't remember the rest he had no and there's no evidence mcdonald one of the three officers that all got out of the car at the same time the police vehicle and approached mr thea that and his acquaintance and searched the area around them but did not find any marijuana based upon that the jury was well within gresham to her that he had knowledge they had a hushed conversation and decided at that time to place mr c n n is going in handcuffs and put them in the police vehicle and accepting the jury was free to disregard also or disbelieve macdonnell testimony that he didn't remember what happened and i would note that accepting macdonald argument about that lack of memory that it means that there's no evidence of knowledge with the president and encourage potential officers to do that same argument jury and there was also no prejudice from the lack of a jury instruction on mere possession when evaluating prejudice you assess the error in light of the record of the whole marshall the randall seven  happened they rejected crimson's version entirely the jury obviously did not believe croom's who even admitted in court that he lied on the stand that's rejection of croom's his version demonstrates that in this case there was no prejudice other with regard to the verdict on the excessive force claim that was and that's not a basis to say they didn't reject his testimony entirely no more the it may not be important to the disposition that you're seeking but that does isn't it some indication that that they did not wholly reject his testimony can we really be confident that they didn't just pick and choose different portions i think that force claim where an officer was something doing something quick to a dislike to punch or kick or using pepper spray without any basis here the force alleged was that he was holding his arm behind the back but that he was doing it too hard to potentially a jury you know given the lack of like it's true it is element of four it's a very good find that that happened but it was not excessive also i think that argument is irrelevant because it doesn't explain how the jury could have come to conflicting results on the probable cause determination from the exact same eviden the defendant also argues in their initial argument here that there was a defense to this record made an error by the using a heightened standard of review on the prejudice question s and the it at all excuse me mcdonald argues for qualified immunity is requests must be tonight and did not ask for qualified immunity as post trial papers and typically arguments that are not raised in evaluated below are generally not considered for the st time on appeal donal's argument is that he is entitled to qualified immunity because it was not clearly established that he had to investigate the arrest after the fact  conclusion that he possessed marijuana even though they still also found it was not open to burn in public view the fundamental point is that it should have been a question for the jury to decide and because of the erroneous instruction the jury was denied the opportunity to decide that also just to irrelevant as that in tech shows and also the fact that they didn't argue in the closing is because you're denying that the instruction on that issue so it would have been improper tendered to argue during the closing and then moving quickly